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The U.S. Supreme Court on June 25 and June 28 issued the following opinions: • The justices ruled, 5-4, that school districts’ racial integration programs can’t make student assignments based solely on racial classifications. Parents Involved v. Seattle School District, No. 05-908; and Meredith v. Jefferson County Board of Education, No. 05-915. Seattle and Jefferson County, Ky., school districts voluntarily adopted student assignment plans that relied on race to determine which schools certain children may attend. The Seattle district classified children as white or nonwhite. The Jefferson County district classified students as black or “other.” Parents Involved, a group of Seattle parents, and Crystal Meredith, mother of Jefferson County student Joshua, filed suits contending that allocating children to public schools based solely on their race violates the 14th Amendment’s equal protection guarantee. In the Seattle case, a Washington state federal court granted summary judgment to the school district, finding that its plan survived strict scrutiny because it was narrowly tailored to serve a compelling government interest. The 9th U.S. Circuit Court of Appeals affirmed. In the Jefferson County case, a Kentucky federal court found that the district had asserted a compelling interest in maintaining racially diverse schools, and that its plan was narrowly tailored to serve that interest. The 6th Circuit affirmed. The justices reversed. Writing on behalf of the court, Chief Justice John G. Roberts Jr. said that while government has an interest in fostering diversity in the student body, that interest cannot be focused on race alone, but must encompass “all factors that may contribute to student body diversity . . . including, e.g., having overcome personal adversity and family hardship.” In the present cases, Roberts said, “[U]nder each plan when race comes into play, it is decisive by itself . . . .Even as to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/’other’ terms in Jefferson County.” CONSTITUTIONAL LAW The justices ruled, 5-4, that public schools don’t violate students’ First Amendment rights when they take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. Morse v. Frederick, No. 06-278. On Jan. 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City. As the torchbearers passed by, high school senior Joseph Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” Deborah Morse, the school principal, confiscated the banner and suspended Frederick for 10 days. The district superintendent upheld the suspension, saying the banner appeared to advocate illegal drug use. Frederick filed suit under 42 U.S.C. 1983, alleging violation of his First Amendment rights. An Alaska federal court granted summary judgment to the school board and Morse, ruling that they had not infringed Frederick’s First Amendment rights. The 9th Circuit reversed, ruling that his First Amendment rights had been infringed because the school punished him without demonstrating that his speech gave rise to a “risk of substantial disruption.” The justices reversed, holding that a principal may restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Writing on behalf of the court, Roberts said, “The ‘special characteristics of the school environment’ . . . and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse.” The justices held, 5-4, that Section 203 of the Bipartisan Campaign Reform Act is unconstitutional as applied to pre-election issue ads run by Wisconsin Right to Life. Federal Election Commission v. Wisconsin Right to Life Inc., No. 06-969. Section 203 makes it a federal crime for a corporation to fund broadcasts that refer to a candidate for federal office and air within 30 days of a federal primary election or 60 days of a general election. On July 26, 2004, Wisconsin Right to Life Inc. began broadcasting advertisements telling voters to urge Wisconsin’s senators to oppose a Senate filibuster of judicial nominees. Recognizing that as of Aug. 15, the ads would be illegal under Section 203, Right to Life filed suit against the Federal Election Commission, claiming Section 203 was unconstitutional. The district court denied a preliminary injunction, holding that the U.S. Supreme Court’s McConnell v. Federal Election Comm’n, 540 U.S. 93, had upheld Section 203 against a First Amendment challenge even though the section encompasses “issue advocacy.” The justices vacated that judgment, holding that McConnell “did not purport to resolve future as-applied challenges” to Section 203. On remand, the district court granted Right to Life summary judgment, holding Section 203 to be unconstitutional as applied to the three ads. The justices affirmed. Writing on behalf of the court, Roberts said the speech here is not the “functional equivalent” of express campaign speech. Because the ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy, and therefore fall outside McConnell‘s scope. The justices ruled, 5-4, that taxpayers do not have standing to challenge executive branch actions under the establishment clause of the U.S. Constitution. Hein v. Freedom from Religion Foundation, No. 06-157. The Freedom from Religion Foundation filed a suit challenging the use of government funds to promote President Bush’s Faith-Based and Community Initiatives. A Wisconsin federal court ruled the foundation had no standing to sue because taxpayers can only challenge the constitutionality of exercises of congressional power. The 7th Circuit reversed, ruling that taxpayers can challenge any activity funded by a congressional appropriation. The justices reversed. Writing on behalf of the court, Alito said “the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures in question, which resulted from executive discretion, not congressional action. The Court has never found taxpayer standing under such circumstances.” CRIMINAL PRACTICE A death row inmate who was deluded as to the reason for his sentence may be mentally incompetent to be executed, the justices ruled, 5-4. Panetti v. Quarterman, No. 06-6407. Scott Louis Panetti was convicted and sentenced to death for shooting his in-laws in 1992. He had a history of mental problems, with 14 hospital stays over 11 years before his conviction. His lawyers said he believes he is on death row because he preaches the word of God. Applying 5th Circuit precedent, a Texas federal court said a prisoner can be executed “so long as he is aware that the State has identified the link between his crime and the punishment to be inflicted.” The 5th Circuit affirmed. The justices reversed. Writing on behalf of the court, Kennedy said, “It might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime . . . .Both the potential for this recognition and the objective of community vindication are called into question, however, if the prisoner’s only awareness of the link between the crime and the punishment is so distorted by mental illness that his awareness . . . has little or no relation to the understanding shared by the community as a whole.” REAL PROPERTY The justices ruled unanimously that government officials acting in their official capacity can’t be held personally liable for damages under the Racketeer Influenced and Corrupt Organizations Act for trying to obtain property for the government. Wilkie v. Robbins, No. 06-219. Frank Robbins sued Bureau of Land Management employees under RICO for alleged extortion in trying to gain a reciprocal right-of-way through his property. A Wyoming federal court denied a motion to dismiss based on qualified immunity. The 10th Circuit affirmed. The justices reversed, holding that RICO does not permit a claim against agency officials in their individual capacity. Writing on behalf of the court, Souter said, “While public officials were not immune from extortion charges at common law, that crime focused on the harm of public corruption, by selling public favors for private gain, not on the harm caused by overzealous efforts to obtain property on the Government’s behalf.” ENVIRONMENTAL LAW The justices held, 5-4, that Section 7(a)(2) of the Endangered Species Act isn’t an additional criterion the Environmental Protection Agency must consider when determining whether to transfer permitting power under the Clean Water Act. National Association of Home Builders v. Defenders of Wildlife, No. 06-340. Under the Clean Water Act, the EPA administers each state’s national pollution discharge elimination system permitting program. Section 402(b) of the act provides that the EPA “shall approve” transfer of permitting authority to a state upon a showing that it has met nine specified criteria. Section 7(a)(2) of the Endangered Species Act of 1973 requires federal agencies to ensure that any proposed agency action doesn’t jeopardize an endangered species. In 2002, Arizona officials applied for EPA authorization to administer the state’s pollution discharge program. The EPA consulted the Fish and Wildlife Service to determine if the transfer would adversely affect any listed species. The FWS said that though there was no direct impact, potential impact should also be taken into account. The EPA said Arizona had met Section 402(b)’s nine criteria and approved the transfer. The 9th Circuit vacated, holding that though Arizona had met Section 402(b)’s criteria, Section 7(a)(2) required the EPA to determine if the transfer would jeopardize listed species. The justices reversed. Writing on behalf of the court, Alito said that while the EPA may exercise some judgment in determining if a state can carry out Section 402(b)’s criteria, “the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in Section 402(b) authorizes the EPA to consider the protection of listed species as an end in itself when evaluating a transfer application.” ANTITRUST See Page 1 for a story on the justices’ 5-4 ruling that vertical minimum-resale price-maintenance agreements should not be deemed per se antitrust violations. Leegin Creative Leather Products Inc. v. PSKS Inc., No. 06-480.

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