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To lawyers throughout the land, the name Adarand Constructors is already synonymous with the movement to limit affirmative action in the public sector. Be advised: When the Supreme Court returns next October, Adarand, and affirmative action, will be back on the docket. This latest challenge to affirmative action in government contracts is just one of some 40 cases that the high court has agreed to hear next term. As the justices recessed last week, they left behind a fall agenda that includes free speech, the death penalty, the Americans With Disabilities Act, and the ongoing battle over telecommunications regulation. Here are a dozen of the most challenging cases: Affirmative Action. No case is likely to divide the justices more deeply than Adarand Constructors Inc. v. Mineta, No. 00-730. In 1995, in an earlier incarnation of the same case, the Court ruled 5-4 that all racial classifications by any level of government — local, state, or federal — must be subjected to the highest level of scrutiny under the equal protection guarantee implied in the Fifth Amendment and spelled out in the 14th Amendment. The standard applied in Adarand Constructors v. Pe�a means that government programs using race as a basis for decision making must be “narrowly tailored” to advance a “compelling interest.” Now Adarand contends that the 10th U.S. Circuit Court of Appeals erred last September when it upheld the U.S. Department of Transportation’s Disadvantaged Business Enterprise program. The program in its current form gives a competitive contracting advantage to economically disadvantaged businesses and then makes it easier for minority-owned firms to claim disadvantaged status. The 10th Circuit ruled that Congress, which authorized the program, was justified in trying to eliminate the effects of past discrimination, even under the most exacting form of constitutional scrutiny. Adarand argues that the Court’s scrutiny of the use of race was too lenient. The Bush administration hasn’t filed its brief yet and faces the dilemma of whether to defend a federal program that appears inconsistent with the previously expressed views of the president, Attorney General John Ashcroft, and Solicitor General Theodore Olson. Pornography. Two separate appeals by the Justice Department address the touchy question of regulating pornography online. Ashcroft v. American Civil Liberties Union, No. 00-1293, challenges a 1998 federal law that makes it a crime for commercial Web sites to display pornography without safeguards designed to restrict access by minors. The Child Online Protection Act was passed after the Supreme Court struck down Congress’ first attempt to shield minors from Internet porn. Last June, the 3rd Circuit blocked the 1998 law from taking effect. The court said that the law’s determination of what is “harmful to minors” based on “contemporary community standards” was unworkable for Web sites, which, of course, operate nationally with no control over the location of individual visitors. In Ashcroft v. Free Speech Coalition, No. 00-795, the justices will review a ruling by the 9th Circuit striking down part of a 1996 federal law that prohibits computer-generated child pornography. The Child Pornography Prevention Act expanded the definition of child porn to include a “visual depiction” that “appears to be” a minor engaging in sexual activity. The court said that since no actual children were involved, Congress was simply trying to censor “evil ideas” in violation of the First Amendment. Adult Bookstores. City of Los Angeles v. Alameda Books, No. 00-799, will test the power of cities under the First Amendment to restrict the number of adult businesses at a single location. The 9th Circuit struck down a Los Angeles ordinance that barred operation of more than one adult business in a building and defined a combined bookstore and video arcade as two separate businesses. While zoning laws have been an important means of regulating the sex industry, the appeals court said Los Angeles failed to show that having two related businesses at one location would increase the harmful effects. Public Protest. In Thomas v. Chicago Park District, No. 00-1249, the justices will decide whether a local ordinance must guarantee a quick court ruling on any decision to deny a permit for a public rally. The 7th Circuit found that the ordinance provided adequate access to the courts for those challenging denial of a permit for a 1997 rally in favor of legalizing marijuana. But federal appeals courts are divided on what kind of court review is required under First Amendment standards. Death Penalty. One of the most closely watched cases of the next term will be McCarver v. North Carolina, No. 00-8727. Does executing convicted murderers who are mentally retarded violate the Eighth Amendment prohibition of cruel and usual punishment? The answer will turn on the Supreme Court’s view of whether society’s “evolving standards of decency” reflect a consensus against executing the mentally retarded. At least 15 death penalty states have specifically barred executing the mentally retarded, but many capital punishment states still permit it. Privatization. In Correctional Services Corp. v. Malesko, No. 00-860, a private company performing government tasks is being sued for allegedly violating the constitutional rights of an individual. The Supreme Court has allowed these suits against federal agents who violate individual rights, but ruled in 1994 that such suits weren’t allowed against federal agencies. The 2nd Circuit said that this constitutional rights suit could be filed against a company that ran a halfway house for the Federal Bureau of Prisons. The high court’s ruling would likely apply to many other private companies that now administer a broad range of government functions. Disabilities. Two cases will provide guidance on the scope of the Americans With Disabilities Act. In Toyota Motor Manufacturing, Kentucky Inc. v. Williams, No. 00-1089, the issue is whether repetitive stress injuries are a disability under the 1990 federal law. The 6th Circuit ruled that a worker with carpal tunnel syndrome was covered. In US Airways Inc. v. Barnett, No. 00-1250, the question is whether the ADA requirement that an employer make a “reasonable accommodation” for disabled workers can require the employer to override its seniority system. The 9th Circuit said yes. Telecommunications. The justices have also taken on some highly complex regulatory disputes. One set of cases — National Cable TV Association v. Gulf Power Co. and Federal Communications Commission v. Gulf Power Co., Nos. 00-832 and 00-843-asks whether the FCC may regulate the rates that utility companies charge cable operators for using utility poles and underground facilities to provide high-speed Internet access. Another set of five cases addresses the FCC’s regulation of the fees that local telephone companies charge new rivals for use of their existing networks. The cases are: Verizon Communications Inc. v. FCC, No. 00-511; Worldcom v. Verizon Communications Inc., No. 00-555; FCC v. Iowa Utilities Board, No. 00-587; AT&T Corp. v. Iowa Utilities Board, No. 00-590; and General Communications Inc. v. Iowa Utilities Board, No. 00-602. Finally, the justices will rule on whether the decisions of state regulators under the 1996 Telecommunications Act may be challenged in federal court. The combined cases are: Mathias v. Worldcom Technologies Inc., No. 00-878; Verizon MD. Inc. v. Public Service Commission of MD, No. 00-1531; and United States v. Public Service Commission of MD, No. 00-1711. Stephen J. Wermiel is an associate professor at American University Washington College of Law, where he teaches constitutional law, media law, and a seminar on the Supreme Court.

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