Justice Thomas wants to sharply restrict the First Amendment rights of young people

The issue before the Supreme Court was whether the State of California could make it illegal to sell or rent violent video games to children. The Supreme Court, consistent with its near-absolutist approach to free speech issues, says that while some of these video games are violent and quite vile, the government cannot restrict this form of speech without a compelling interest. Since it is almost impossible to advance a compelling interest in First Amendment cases, California loses. That is not a remarkable holding, as the Court reached this conclusion on the basis of a bi-partisan vote. The remarkable thing about this ruling is Justice Thomas's dissenting opinion.

The case is Brown v. Education Merchants Assn, decided on July 27. You can understand why California tried to make these games illegal. Justice Alito's concurrence describes what these games are about:

In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed. It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.

The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in “ethnic cleansing” and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.

OK, so we know the games are bad. But Justice Scalia, writing for the majority, notes there is no historic tradition to shield minors from violent literature and other forms of mass media. He notes that childrens' books, including the Grimm's Fairy Tales, are violent, as are high school reading lists. We put up with all sorts of offensive speech, from flag burning to racist speech, none of which can be regulated by the government. Years ago, we put up with offensive comic books and movies. As The Court majority notes, people cries wolf back then, but the "anything goes" mentality will always seem to govern these cases. Last year, the Supreme Court held that the government cannot outlaw videos showing people crushing animals to death. This time around, violent video games are equally protected.

In dissent, Justice Thomas takes an originalist approach to the First Amendment that no one else on the Court agrees with. Through exhaustive research, he argues that when the First Amendment was adopted in the Eighteenth Century, it was understood that parents were able to control what their minor children could see and hear. He writes:

The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.

...

In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

Justice Thomas's scholarship on this issue is all very interesting, but no one else is buying this. A few years ago, he argued in Morse v. Fredericks, 551 U.S. 393 (2007), that the Supreme Court's seminal case in favor of high school students' First Amendment rights (Tinker v. Des Moines School District, 391 U.S. 503 (1969)) should be overruled because the original understanding of the First Amendment in the Eighteenth Century did not recognize that school children had any First Amendment rights at all. No one else on the Supreme Court joined in that analysis, either.

Military reservist loses USERRA case

Evan Hart was a dentist who fought in Iraq. When he returned to work, his boss told him that he would be terminated in 60 days. That 60 days' notice became 30 days' notice when Hart protested. After Hart filed a USERRA complaint with the Department of Labor, the Department told Hart's employer that he could not be fired for 180 days. Management complied with that directive. So, does Hart have a case? No, and it was dismissed during trial in Connecticut. The Court of Appeals affirms.

The case is Hart v. Family Dental Group, decided on May 31. USERRA is the Uniformed Services Employment and Reemployment Act, which grants military reservists certain employment rights. One USERRA provision is quite generous to reservists: upon the employee's return from his military obligations, the employer cannot fire him for 180 days without cause. Apart from the 180 day rule, the employer must re-employ the reservist as if he had never left. As the Second Circuit (Miner, Cabranes and Straub) puts it, "the only question before us is whether [management's] January 20 letter providing Hart with 60-days notice (later amended to 30 days and thereafter amended again to 180 days) and Hart's subsequent termination in accordance with the terms of that letter violated [USERRA]. It did not."

Hart loses the case. When Hart returned from Iraq on January 17, 2005, he got his job back. All was good with the world, until January 20, only three days later, when his boss gave him a letter stating he would be fired in 60 days. There is no showing that Hart was fired for cause, and his ultimate termination after 180 days was legal under USERRA. The Court writes, "the evidence is clear that Dr. Hart was re-employed on his return from his leave for 180 days, with the same seniority and other rights and benefits that he had ... before he left on his tour. That is all [USERRA] requires." Not the most complicated case in the world, decided by the Second Circuit in a published opinion only two weeks after it was argued.

The Harvey Note doesn't support a Habeas petition

I would imagine that all inmates dream about winning their habeas petitions in federal court. They get to one-up the state court judges who convicted them and, of course, the charges are dropped or a new trial is ordered. That's what happened to this guy, but the Court of Appeals reinstates the conviction.

The case is Watson v. Greene, decided on May 17. Watson was convicted of first-degree murder for shooting Morris. Watson admitted participating in the robbery in which Morris was shot, but he claimed that someone else, Harvey, pulled the trigger. The jury said that Watson shot Morris. The jury didn't know that something happened that was a defense lawyer's dream: he got his hands on a note that suggested that Harvey and not Watson shot Morris. For some reason, defense counsel got the note during the second day of jury selection, but the trial court said it could not come in at trial because it was hearsay.

The note was written by a police officer, Pierce, who was not involved in the murder investigation. Pierce happened to know Harvey's family and she overheard them talking about the case, that Harvey had a gun the night of the killing and it went off accidentally. What were the odds that a police officer would know Harvey's family? Anyway, the detective on the case did not follow up on this lead, and the trial court would not let Watson's lawyer exploit this note at trial, i.e., he could not cross-examine the detective, Bond, about his failure to further investigate the information in the note which may have exonerated Watson.

Habeas petitions are hard to win. There are too many barriers. Harmless error is one problem when convicts try to argue that the excluded evidence would have made a difference. A 1996 federal law also gives state courts some leeway in interpreting the U.S. Constitution, so long as their erroneous interpretations are not unreasonable. You read that right. In some cases, state courts are allowed to get it wrong and the convicted defendant still does not get a new trial.

The federal trial court granted the habeas petition because the precluded cross-examination went to the thoroughness of the police investigation. Great news for Watson. I would imagine Watson's attorney would have a field day with this note at trial, had he been able to put Detective Bond on the stand and quizzed him about his shoddy investigation. That cross-examination, however, will not happen.

The Court of Appeals (Lynch, Chin and Korman [D.J.], reverses, and the conviction stands. While the Confrontation Clause guarantees defendants to cross-examine their accusers, a trial court has "broad discretion" to restrict cross-examination. While the Harvey Note had some relevancy, the restriction on cross-examination does not entitle Watson to a new trial. The Note contained multiple hearsay, "and the jury reasonably could have determine that Bond's decision not to follow up on unreliable information that Harvey was the shooter -- particularly in light of the strength of the evidence then available to Bond -- did not reflect a serious lack of thoroughness of the police investigation." Also, the trial court could have found that the hearsay note would confuse and mislead the jury. In light of the broad discretion that criminal court judges have in managing their trials, exclusion of this note was not an unreasonable application of settled Supreme Court Confrontation Clause doctrine.

Officers get qualified immunity in excessive force case

The Court of Appeals has dismissed an excessive force claim against the City of Long Beach on the basis that the police officers reasonably believed they were complying with the Constitution when they restrained a suspect in the course of a possible domestic violence incident.

The case is Hodge v. City of Long Beach, a summary order decided on June 20. The district court denied the officers' motion for summary judgment. Normally, that means the case goes to trial to resolve disputed factual issues. But in Section 1983 cases, the defendants can appeal right away if they claim qualified immunity from liability. In excessive force cases, these defendants often find a sympathetic ear in the Second Circuit. That's what happened here.

As the Second Circuit summarizes the case,

The plaintiff claims that the officers spun him around with a forearm, grabbed his neck, put him in a bear hug, and pulled his arms behind his back as they attempted to handcuff him, causing “injuries and bruises to his back, and abrasion on his arms and neck, and [rendering him] unable to swallow.” He concedes that the incident “happened quickly” and that he was never forced to the ground.

In assessing excessive force claims, courts consider the severity of the crimes that brought the police into contact with the plaintiff in the first instance. As this was a domestic dispute which "tend[s] to be 'combustible'" (as shown by broken glass and a bloody shirt), the police had some leeway in controlling the situation. Courts also consider whether the plaintiff posed an immediate threat to the officers, another factor that weighs in the City's favor, as plaintiff would not take his hands from his pockets. We also ask whether suspect was actively resisting arrest. Here, plaintiff "displayed defiant resistance, abruptly turning and walking away from the officers." Under the circumstances, Hodge cannot win the case because the officers have qualified immunity. The Court of Appeals (Jacobs, Winter and McLaughlin) reasons that "because of the plaintiff’s defiance and the indicia of a potential incident of domestic violence, it would not be 'clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'”

Supreme Court scales back First Amendment's Petition Clause

Justice Kennedy opens up the Supreme Court's Petition Clause ruling with the following language: "Among other rights essential to freedom, the First Amendment protects 'the right of the people ... to petition the Government for redress of grievances.'" Nice language, but it's all downhill from there for public employees.

The case is Borough of Duryea v. Guarnieri, decided on June 20. The Court does not issue many Petition Clause cases. This one asks whether a public employee who files a grievance and then a lawsuit is protected from retaliation under the Petition Clause. After all, in-house grievances and lawsuits constitute "petitions" under the Constitution, right? The answer is, sort of. The petition must address a matter of public concern. Otherwise, management is free to retaliate against the employee, even if he won the grievance and brought suit in federal court.

If you follow public employee free speech cases, some of this language may sound familiar. The Supreme Court said in Connick v. Myers (1983) that public employee speech is protected from retaliation if the employee spoke out on a matter of public concern. This standard ensures that the federal courts are not embroiled in disputes over whether the plaintiff got the right air conditioning or enough paper clips. In contrast, speech alleging corruption or misuse of public money is public concern speech, so long as the speech does not grow out of the plaintiff's official duties. What the Supreme Court does in this case is to fold the free speech clause's "public concern" test into the Petition Clause.

Although the jury found in Guarnieri's favor after the municipality jerked him around for filing a successful grievance and challenging his mistreatment in court, the Supreme Court vacates plaintiff's lucrative jury award. It is true, the Supreme Court has held in the past, that "the right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government." But the Petition Clause should not grant employees broader rights than the free speech clause, the Court says. Under either clause, the plaintiff must grieve or speak out on matters of public concern. Since many grievances and lawsuits raise personal matters and not broader issues of concern to the public, there is no solace in the Petition Clause. The practical effect of this case is known to Section 1983 lawyers in the Second Circuit: if the plaintiff files and wins a First Amendment retaliation lawsuit, for example, management may then fire the plaintiff in retaliation for that very lawsuit (unless the lawsuit somehow raised broader issues of public concern beyond the plaintiff's own personal grievance).

The Court's reasoning grants substantial deference to governmental authority, repeatedly reminding us that government offices have important objectives and therefore need to be managed efficiently. "Petitions, no less than speech, can interfere with the efficient and effective operation of government," Justice Kennedy says. Moreover, "when a petition takes the form of a lawsuit against the government employer, it may be particularly disruptive." And, these cases will require the jury to delve into trivial matters about the underlying grievance, i.e., overtime matters, personnel decisions and budget priorities. This raises federalism and separation of powers concerns. The Court worries that different legal standards for free speech and Petition Clause cases "would add to the complexity and expense of compliance with the Constitution."

I thought for sure the Court's liberals would dissent in this case. They did not. The Supreme Court has never had a case like this before, which means the Justices are writing on a clean slate. If the political science considerations that inform Justice Kennedy's decision are not firmly rooted in Supreme Court precedent, and if the Petition Clause is weakened such that even successful lawsuits in federal court do not constitute protected activity, where are the liberals who vigorously dissented the last time the Court scaled back public employee speech claims, in Garcetti v. Ceballos (2006)? I can't say. Maybe Justice Kennedy issued the decision without circulating it to his colleagues!

What would Abe Fortas think of this?

Abe Fortas only sat on the Supreme Court for a few years in the 1960's before he resigned in disgrace, but he did write a few memorable opinions, including Tinker v. Des Moines School District (1969), recognizing that students have First Amendment rights so long as their speech does not materially and substantially disrupt the work and discipline of the school. In that case, Justice Fortas said that high school students could not be punished for wearing anti-Vietnam War armbands to school. Tinker is still good law.

The case is R.O. v. Ithaca City School District, decided on May 18. The plaintiffs staffed the high school newspaper. They wanted to publish a cartoon showing stick figures having sex with each other. The cartoon was in the context of an article about sex education in the high school. The principal and superintendent nixed the cartoon as inappropriate and "patently offensive." They also said the cartoon makes a "mockery of sexual intercourse" and would "raise inappropriate questions in the minds of many immature students and interfere with what is being taught in the health curriculum regarding both responsibility and abstinence." District officials also prevented plaintiffs from running the cartoon in an independent newspaper that they wanted to distribute on campus.

The funny thing about Tinker is that it was the first and last time the Supreme Court upheld a student speech case. People like the Tinker case because of Justice Fortas's famous line: "[i]t can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” In the Ithaca stick figure case, Judge Cabranes describes that phrase as "portentous and quotable." It sure is. But there is no way the Second Circuit (Cabranes, Chin and Korman [D.J.]) is going to second-guess district officials in a case like this. (The cartoon is found here at page 18 of the PDF file).

The plaintiffs in this case argued that this case was governed by the lenient Tinker standard. The Court of Appeals sees it differently. Two Supreme Court precedents are in play here: the Hazelwood decision from 1988 and the Fraser case from 1986. Hazelwood says that the principal may edit school-sponsored publications in the name of good taste. Fraser says that schools can punish kids for vulgarities at school. This case implicates both precedents. The stick figures having sex with each other are "unquestionably lewd," the Court of Appeals says. While Fraser involved a lewd student assembly speech, the Second Circuit sees no reason why that precedent cannot govern the written word. In addition, the censorship was "reasonably related to legitimate pedagogical concerns" because, "[a]mong other things, in the weeks during and just prior to the period in which students sought to publish the objectionable cartoon, school authorities became aware that an increasing number of students were engaging in risky sexual behavior." The cartoon would have undercut the school's efforts to stress the seriousness of sexual behavior.

Tinker gets distinguished all the time as the Supreme Court finds ways to make it easier for school officials to regulate student speech in the context of student newspapers (Hazelwood), drug-related speech (Morse v. Frederick [2007]) and vulgarities (Frasier). Tinker is still good law, but its application is limited on a regular basis. What would Abe Fortas think?

Let's hear it for rough justice!

Some Supreme Court decisions are unremarkable, but they contain language that guides the courts in follow-up cases. I wonder if that is the case in the Court's recent attorneys' fees ruling, which notes in passing that trial courts in ruling on fee motions need only provide "rough justice."

The case is Fox v. Vice, decided on June 6. The issue was whether a prevailing defendant in a civil rights case may recover attorneys' fees for all work expended in a case that included a frivolous issue. While prevailing plaintiffs routinely recover attorneys' fees under 42 U.S.C. sec. 1988, prevailing defendants only recover fees if the case was totally frivolous. So the issue here was, can the defendant in that circumstance get all his fees even if only one issue was frivolous?

Here's how the Justice Kagan writes for a unanimous court: "a court may grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not have incurred but for the frivolous claims." As a former law professor, Justice Kagan was probably sick and tired of vague Supreme Court holdings that created more questions than answers, so she provides some examples of how this ruling would apply in the real-world:

Section 1988 allows a defendant to recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim. Recall that the relevant purpose of §1988 is to relieve defendants of the burdens associated with fending off frivolous litigation. So if a frivolous claim occasioned the attorney’s fees at issue, a court may decide that the defendant should not have to pay them. But if the defendant would have incurred those fees anyway, to defend against non-frivolous claims, then a court has no basis for transferring the expense to the plaintiff. Suppose, for example, that a defendant’s attorney conducts a deposition on matters relevant to both a frivolous and a non-frivolous claim—and more, that the lawyer would have taken and committed the same time to this deposition even if the case had involved only the non-frivolous allegation. In that circumstance, the work does not implicate Congress’s reason for allowing defendants to collect fees. The defendant would have incurred the expense in any event; he has suffered no incremental harm from the frivolous claim. In short, the defendant has never shouldered the burden that Congress, in enacting §1988, wanted to relieve.

This is not the end of Justice Kagan's analysis. She comes up with more examples of how the new fee-shifting rule works, much like a practice treatise would, except that these examples have the force of law and expert commentaries do not. The Court explains how the "but for" standard might require the plaintiff to pay all of the defendants' fees even if there were non-frivolous claims:

Suppose, for example, that a plaintiff asserts one frivolous and one non-frivolous claim, but that only the frivolous allegation can legally result in a damages award. If an attorney performs work useful to defending against both, but did so only because of the defendant’s monetary exposure on the frivolous charge, a court may decide to shift fees. Or similarly, imagine that the frivolous claim enables removal of the case to federal court, which in turn drives up litigation expenses. Here too, our standard would permit awarding fees for work relevant to both claims in order to reflect the increased costs (if any) of the federal forum. And frivolous claims may increase the cost of defending a suit in ways that are not reflected in the number of hours billed. If a defendant could prove, for example, that a frivolous claim involved a specialized area that reasonably caused him to hire more expensive counsel for the entire case, then the court may reimburse the defendant for the increased marginal cost. As all these examples show, the dispositive question is not whether attorney costs at all relate to a non-frivolous claim, but whether the costs would have been incurred in the absence of the frivolous allegation. The answers to those inquiries will usually track each other, but when they diverge, it is the second that matters.

What is remarkable about this decision is that the Court issues a new rule for the lower courts to follow, and then it provides examples of how that rule would shake out. This will save the lower courts years of agonizing litigation and conflicting rulings. Instead, federal judges will know what to do if confronted with a case where the defendant is entitled to attorneys' fees.

Federal litigators know that defendants rarely recover fees from a losing plaintiff. The Supreme Court decided a long time ago that fee-shifting is really a one-way street. The winning plaintiff gets them, but the defendant only gets fees if the case is frivolous. So the practical application of this ruling may be limited. But in summarizing how federal judges should apply the fee-shifting statute in general, Justice Kagan does suggest that the trial courts do not have to issue precise attorneys' fees awards. This is important language that will apply in all attorneys' fees cases and make life easier for trial courts that want to issue a ruling without bean-counting. It's worth reprinting here, as the Court uses some colorful language about "rough justice" that hits the nail on the head:

The fee applicant (whether a plaintiff or a defendant) must, of course, submit appropriate documentation to meet “the burden of establishing entitlement to an award.” But trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.

Pro se plaintiff wins battle of the wills in Second Circuit

In this case, the Second Circuit sides with a pro se litigant who was caught up in a battle of wills with a federal judge in Connecticut, who dismissed his racial discrimination case because plaintiff could not find a lawyer before time ran out.

The case is Leftridge v Connecticut State Trooper, decided on May 12. Leftridge sued the police, claiming that he was pulled over on the highway because of his race. The district court denied his motion for appointment of counsel, since you have not right to counsel in civil cases, only criminal cases. Then, plaintiff kept renewing his motion for the appointment of counsel, but the judge kept denying that motion, even after plaintiff's doctor wrote a letter to the court stating that the stress of litigation was affecting plaintiff's mental health and that he should not be representing himself. Again, the trial court has no duty to follow the doctor's wishes.

But then the district court went too far. After the doctor wrote his letter, the judge entered an order stating that the case would be dismissed if he did not hire counsel by June 29, 2009, and that "given the present circumstances, this case should be administratively closed without prejudice to reopening by an attorney for the plaintiff." When plaintiff on June 22, 2009 asked for more time to hire a lawyer because he was trying to raise money for attorneys' fees, the court denied that application. The court a few days later denied plaintiff's motion to reopen the case. June 29, 2009 came and went, and that was the end of the case.

The Court of Appeals (Kearse, Calabresi and Wesley) revives the case. Leftridge wins the appeal pro se. It was legal for the trial court to deny plaintiff's request for the appointment of counsel, but there was no legal basis for the court threaten to dismiss the case if plaintiff could not find a lawyer. The Court concludes, "If an adult individual wishes to conduct his case pro se, an order requiring him instead to retain counsel to represent him violates § 1654 [the statute that allows individuals to represent themselves pro se]. An order dismissing the action of such a pro se plaintiff for failure to retain counsel is a legal error and cannot be located within the range of permissible decisions. Accordingly, in the present case, the district court's July 2 Order refusing to reopen the case solely because Leftridge had not obtained counsel, thereby precluding him from pursuing his case pro se, constituted an abuse of discretion." Wrapping things up, the Second Circuit provides guidance to district courts in case this ever happens again:

Clearly the court did not abuse its discretion by giving Leftridge time to retain counsel, although it would have been preferable for the court to have said that the action was stayed, rather than closed; and the court should have specified that if Leftridge did not retain counsel (by such deadline as the court imposed) he nonetheless had the option of proceeding pro se. And once Leftridge was unable to retain counsel before the June 29 deadline and asked that the case be reopened in order to allow him to proceed pro se, he should have been allowed to proceed pro se. The inability of an individual litigant to obtain counsel is not a basis for denying him his statutory right to pursue his case pro se.

New York City may exclude certain religious groups from public buildings

This could be the most complicated civil rights case in the Second Circuit this year. The Court of Appeals decides whether New York City's prohibition against groups using public school buildings after hours for religious worship services violates the Establishment Clause. In a 2-1 vote, the Second Circuit upholds the rule and says there is no constitutional violation.

The case is Bronx Household of Faith v. City of New York, decided on June 2. This case has reached the Court of Appeals a few times before, gaining new life thanks to recent Supreme Court rulings that gave religious groups equal rights under the First Amendment to use school buildings in certain circumstances. Those Supreme Court rulings prompted the district court to issue an injunction prohibiting the City from enforcing the rule. While noting that the Supreme Court has not provided clear guidance on this issue (which is why the Second Circuit spent 1.5 years deliberating on this case), the Court of Appeals (Leval, Calabresi in the majority, Walker in dissent) vacates the injunction.

Rule 5.11 prohibits the use of public schools for "religious worship services." Plaintiff wanted to use the school after hours for "Christian worship services." As other organizations get to use the schools for their own purposes, Bronx Household of Faith brought this lawsuit. The Court of Appeals says the rule is not unconstitutional. While the Supreme Court has held in recent years that religious organizations can use public buildings to promote their point of view (placing them on equal ground with non-religious organizations who also use the buildings), Judge Leval says those cases do not apply because plaintiff wants to use the building for "worship services." This is a subtle distinction, one that does not persuade Judge Walker and will probably send this case to the Supreme Court. Here is why the Court of Appeals sided with the City:

The prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view. The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the Board does not prohibit. The conduct of services is the performance of an event or activity. While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule.

...

What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion. The conduct of a “religious worship service” has the effect of placing centrally, and perhaps even of establishing, the religion in the school.

In other words, it's the "worship services" angle that rubs the Court of Appeals the wrong way. A religious meeting for purposes of expressing religious devotion through prayer and singing is one thing. Religious services are quite another. Again, this is a fine line. Judge Leval tries to explain it in everyday terms: "There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view. Under rules consistent with the purposes of the forum, schools may exclude from their facilities all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even though, by participating in and viewing such events, participants and spectators may express their love of them. The basis for the lawful exclusion of such activities is not viewpoint discrimination, but rather the objective of avoiding either harm to persons or property, or liability, or a mess, which those activities may produce."

The Court then determines that the exclusion is reasonable under the Establishment Clause. The reasonableness analysis is deferential to governmental authorities, but the City is held to this easy standard because the Court of Appeals found that the City's rule does not otherwise violate the First Amendment. The exclusion is reasonable because the City has a "strong basis" to believe that the rule was necessary to avoid an Establishment Clause violation. Among other reasons, the Court finds, "the performance of worship services is a core event in organized religion. ... When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school a place for the performance of its rites, and might well appear to have established itself there. The place has, at least for a time, become the church."

Ricci returns to the Second Circuit

After the district court in a reverse-discrimination suit approved a settlement that provided retroactive seniority benefits to 63 black, hispanic and female New York City Department of Education employees, the Supreme Court issued its well-known ruling in Ricci v. DeStefano, which made it much more difficult for municipalities to resolve disparate impact claims without a "strong basis in evidence" to believe it will be subject to disparate impact liability without this remedy. Ricci originated in the Second Circuit, and now it comes back as binding precedent in another case.

The case is U.S. v. New York City Department of Education, decided on May 5. The decision is over 100 pages long, owing to the new and complex standard outlined by the Supreme Court in Ricci (the New Haven firefighters case) and the equally complex puzzle of resolving disparate impact claims where the remedy impacts the employment rights of others not before the court.

In Ricci, the Supreme Court said that, “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In the case before the Second Circuit, the Court throws out the settlement.

The City was originally sued for allegedly using civil service exams that allegedly led to a disparate impact against blacks and Hispanics and also used discriminatory recruiting practices. The case settled in 1999, over the objections of white employees who "objected to four paragraphs that provided permanent appointments and retroactive competitive seniority to 63 black, Hispanic, Asian, or female individuals." In 2001, the Second Circuit vacated the settlement because the white employees should have been allowed to intervene in the lawsuit. They then brought two reverse-discrimination lawsuits against the City. Among other rulings, the district court held that some of the retroactive seniority provided by the settlement agreement was lawful.

The case now returns to the district court. The extensive and painstaking litigation that produced the settlement must be reviewed anew under Ricci. Judge Calabresi writes:

Where, as here, the employer instead provides individualized race- or gender-conscious benefits as a remedy for previous disparate impact, the employer must satisfy the requirements of Ricci, not Johnson and Weber [two prior Supreme Court affirmative action cases], in order to avoid disparate-treatment liability. Under Ricci, the employer must show a strong basis in evidence that, at the time the race- or gender-conscious action was taken, the employer was faced with disparate-impact liability and that the race- or gender-conscious action was necessary to avoid or remedy that liability.

That's life under our appellate system. The trial court works his fingers to the bone applying Supreme Court precedent before new cases come down that change the analysis. The Second Circuit says this is not really an affirmative action case, which is why Johnson and Weber do not apply. This is a Ricci case, where the City tries to avoid a disparate impact judgment and, in so doing, might have handed a disparate treatment case to someone else burdened by the remedy under the settlement. The district court has to look at the case again under Ricci.