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Saving the worst for last, on the final day of the term the Supreme
Court issued 5-to-4 rulings on school vouchers and drug testing that
blow a huge hole in the wall of church-state separation and shrivel the
privacy rights of students.
Since 1996 Ohio has provided tuition aid for Cleveland grade school
students to attend private schools, special city or suburban public
schools and individual tutoring classes. In the 1999-2000 school year,
96 percent of the students in this program went to religious schools.
Nevertheless, the Supreme Court approved the voucher system (Zelman
v. Simmons-Harris). Writing for the Court, Chief Justice William
Rehnquist noted that the tuition aid went initially to the parents, who
then endorsed the check over to the school. Because the parents could
have chosen one of the public school programs, the "incidental
advancement of a religious mission," wrote Rehnquist, is not
attributable "to the government, whose role ends with the disbursement
On its face, this is nonsense. The "achievement of a religious mission"
is directly attributable to the state, which actually pays the funds to
the religious institution; the parent is only a conduit who directs
where the money will go. The declared purpose of these schools is
religious indoctrination of students. The curriculums include prayer,
and all subjects are taught in a religious framework. Providing the
tuition money that makes it possible for these schools to enroll their
students puts the government squarely in the business of achieving a
Formally, the program was neutral, but in practice it was not. The
amount of aid was too little for nonreligious private schools but more
than enough for the low-cost religious schools, where the program paid
for the full tuition. The overwhelming proportion of this money thus had
to go to religious schools, which, of course, the Ohio legislature had
to know. Moreover, if formal neutrality is the test, a program will pass
muster even if all the money and students go to religious schools, so
long as it has some secular purpose. Since such a purpose can always be
produced, the door is wide open for massive state support of
fundamentally religious activity.
The focus on choice ignores the point of the Establishment Clause of the
Constitution. That clause is not designed to promote a choice between
religious and nonreligious institutions, nor is there any right to such
choice at state expense. The intent of the Establishment Clause is to
avoid spending taxpayer money in a way that promotes religion and thus
encourages sectarian rivalry. We had a great deal of such strife before
1787, and the clause was adopted to prevent this. Also, as Jefferson
explained, no one should be "compelled to...support any religious
worship, place, or ministry whatsoever...[even a] teacher of his own
religious persuasion"; Madison, the father of the Bill of Rights, shared
The decision will probably not result in many more voucher programs.
There is a lack of state money for education and strong allegiance to
public schools; studies by the government and other organizations do not
support the claim that voucher programs substantially improve academic
achievement. The decision will, however, produce many bitter religious
fights. As soon as the decision came down, state and federal legislators
introduced voucher legislation. There will also be conflicts over other
programs, including challenges by religious groups to the more stringent
provisions on church-state separation in state constitutions.
The Court's drug testing decision is also more important for what it
portends than for its immediate result. In 1989 the Vernonia, Oregon,
school district instituted a drug testing program for student athletes.
In 1995 the Court approved the program but stressed the special
circumstances of the case: Vernonia had a serious drug problem in which
athletes were the leaders of the drug culture; missed football plays and
serious sports accidents had been attributed to drug abuse. The Court
cautioned, however, "against the assumption that suspicionless drug
testing will readily pass Constitutional muster in other contexts."
That caution disappeared, however, when the Tecumseh, Oklahoma, school
district found drugs on the campus, heard students talk about drug use
and decided to test all middle and high school students who wanted to
participate in competitive extracurricular school activities. Lindsay
Earls, a member of the choir, the marching band, the Academic Team and
the National Honor Society objected but, after winning in appeals court,
lost in the Supreme Court (Board of Education of Independent School
District No. 92 of Pottawatomie County v. Earls).
Writing for the majority, Justice Clarence Thomas ignored all the
special circumstances of the Vernonia case and dismissed the absence of
a demonstrated problem of drug abuse as unimportant. Because (1)
students have a reduced expectation of privacy, (2) the intrusion is
"negligible," (3) the sanction (exclusion from extracurricular
activities) is minor and (4) drug abuse is a bad thing, the program is
acceptable. Any effort to link drug abuse to choir singing, the marching
band or the Academic Team would have been ludicrous, and Thomas didn't
even try. On his reasoning, as long as the sanctions are minor, all
students may be subjected to drug testing because the other factors he
mentioned always exist.
Although the decision is far-reaching, its immediate impact is likely to
be modest. Few schools routinely test even their athletes, and
widespread testing is expensive. The decision underscores once again,
however, that for the Supreme Court, the rights of young people are
shredded when they walk through the schoolhouse gates.
Politicians and courts are taking their cues from growing public
They pledge allegiance to the thought
That every politician ought
To take a stand that's foursquare for the Lord.
They think if they say, "God is great!
Don't separate him from the state!"
Election is the blessing he'll afford.
Belief in God is not the issue in the continuing brouhaha over the constitutionality of the Pledge of Allegiance. Rather, it's the government's endorsement of a monotheistic God.
Amid all the recent assaults on the Bill of Rights, including the latest
trashing in the USA Patriot Act and the denial of habeas corpus to
citizens, amid all this, in the span of one week, the Supreme Court has
issued rulings almost beyond the dreams of the most ardent civil
Listen to the exultant cry of Steven Hawkins, executive director of the
National Coalition to Abolish the Death Penalty, who said this is "the
most favorable term in a quarter of a century, in terms of death penalty
For those who have gazed aghast over the past generation as jury rights
have been trampled by tough-on-crime fanatics and liberal elites, there
are paragraphs in certain opinions in the Court's rulings that are as
momentous as any in the Warren Court. From whose pen did these
"My observing over the past twelve years the accelerating propensity of
both state and federal legislatures to adopt sentencing factors
determined by judges that increase punishment beyond what is authorized
by the jury's verdict, and my witnessing the belief of a near majority
of my colleagues that this novel practice is perfectly OK, cause me to
believe that our people's traditional belief in the right of trial by
jury is in perilous decline. That decline is bound to be confirmed, and
indeed accelerated, by the repeated spectacle of a man's going to his
death because a judge found that an aggravating factor existed.
We cannot preserve our veneration for the protection of the jury in
criminal cases if we render ourselves callous to the need for that
protection by regularly imposing the death penalty without it."
John Paul Stevens, you guess? No, Antonin Scalia. His emphasis on the
fundamental role of the jury as guardian of our rights under the
Constitution runs entirely counter to the trend of the past couple of
decades, when judges have, with either the approval or indifference of
legislatures and the press, been allowed not only to deprecate the
jury's fundamental right to nullify and set the law aside but also to
set jurors' verdicts aside and impose their own, often with lower
standards of proof.
By and large, liberals have been the architects of these erosions of
fundamental popular rights, whether it was Tip O'Neill rushing through
totalitarian drug laws in the mid-1980s; or Clinton's Antiterrorism and
Effective Death Penalty Act (which, among other horrors, junked the
doctrine of habeas corpus); or the hate crimes statutes written into
many state codes at the behest of gay, feminist and liberal civil rights
groups in the wake of the James Byrd and Matthew Shepard killings.
Scalia exposes the contradictions tellingly in his concurring opinion in
Ring v. Arizona, where the Court struck down, 7 to 2, an Arizona
statute that allowed judges rather than juries to impose the death
penalty. He rightly chides Justice Stephen Breyer for inconsistency in
endorsing the right of judges to overrule the jury in tacking on
enhanced punishment under hate crimes statutes, and then, in Ring v.
Arizona, for tacking the other way. Scalia's term for this kind of
pirouette is "death-is-different jurisprudence."
Another momentous Supreme Court ruling, Atkins v. Virginia,
concerns a case in which a man with an IQ of 59 was sentenced to death
for committing a robbery and murder. The Court has ruled 6 to 3 that
times have changed and that it's not OK these days to put the retarded
Scalia, dissenting, made an argument in consonance with his view of the
jury's paramount role, as expressed in Ring. Why, he asked,
should the determining of a person's mental competence be allotted to
the social scientists, the IQ testers, the battery of so-called experts
so memorably stigmatized in the works of the late, great Stephen Jay
Gould? Liberals don't want to execute the mentally retarded; they just
want to abort or sterilize them. In the Atkins trial, Scalia noted, the
jury had been given testimony on the murderer's mental capacity but had
regarded it as insufficient in detaining the defendant from the death
Scalia asks, How can one exempt people from the capital penalty on the
grounds of mental incapacity to recognize the concepts of punishment and
retribution, and then put them away in prison for their rest of their
Where Scalia is caught in an obvious contradiction is in his endorsement
of the notion that only those prepared to vote for the death penalty
should be allowed on a jury, and that appeals court judges opposed to
the death penalty should recuse themselves in capital cases. "There is
something to be said," Scalia writes in his dissent in Atkins,
"for popular abolition of the death penalty; there is nothing to be said
for its incremental abolition by this Court." Again, it's a good
argument, but abolition of slavery began in part with the refusal of
juries to abide by statutes endorsing slavery. Ditto with religious
freedom, starting with William Penn, whose jury refused to convict him
for flouting the Conventicle Act.
If he were consistent, Scalia would recognize that jurors should be
rejected only if they have a material interest in the outcome of the
case. And given that some 30 percent or more in the United States are
opposed to the death penalty, such juries would more than likely have a
death penalty opponent among the twelve. On the role and rights of the
jury I strongly recommend Godfrey Lehman's Is This Any Way to Run a
Meanwhile, we should honor the tremendous efforts of the defense teams
who fought these cases to the Supreme Court and who have been rewarded
by two decisions that overturn the death sentences of hundreds. But the
fact remains that it is the death penalty itself that needs to be
abolished, and this is a peerless moment of opportunity for death
penalty activists to press forward.
The Court majority said in the Atkins decision that the Eighth
Amendment prohibition on cruel and unusual punishment reflects social
values, which change from century to century and decade to decade
(notwithstanding Scalia, who gazes back nostalgically 2,000 years to St.
Paul). What an excellent springboard for an invigorated campaign to end
the barbarism of judicial killing.
With the Bush Administration too often feeling the pain of its corporate
sponsors, and with the Enron scandal (so far) producing little political
fallout or legislative change on Capitol Hill, advocates of corporate
accountability have cause for frustration. (Martha Stewart is not much
consolation.) But in one area corporate critics can feel encouraged. For
several years, a small group of lawyers and labor advocates has been
trying to hold transnational companies responsible for their actions by
suing them in the United States for abetting and/or benefiting from
human rights abuses overseas. Finally, these corporation-chasers are
beginning to see signs of possible success.
In about a dozen cases, attorneys in the United States, on behalf of
villagers, indigenous people and labor leaders overseas, have filed
legal action against large corporations under the Alien Tort Claims Act
(ATCA), a law passed in 1789 that allowed foreigners to sue one another
in US courts. The law was not much used until 1979, when the family of a
17-year-old boy tortured and killed by a Paraguayan policeman
successfully employed it to sue the officer. Afterward, human rights
lawyers turned to the act as a way to address human rights violations
conducted or enabled by multinational firms.
In 1996, for instance, the Washington-based International Labor Rights
Fund (ILRF) filed an ATCA suit against Unocal, an oil and gas firm,
charging that it knowingly used slave labor to build a pipeline in
Burma. The plaintiffs included villagers who said they were forced at
gunpoint to work on the project. A federal judge dismissed the ATCA
lawsuit, arguing that Unocal did not have direct control over the
Burmese military regime, a partner in the pipeline project. That
decision is under appeal, but, in a legal first, in June a California
state judge ordered Unocal to stand trial. In that trial, in September,
the plaintiffs will argue under state law that partners in a joint
venture can be held responsible for each other's actions. That would be
a blow to Unocal. Evidence in the federal case showed it was well aware
that human rights abuses were committed by the military regime in
relation to the pipeline.
ATCA-wielding lawyers and activists have been going after corporate
malfeasance around the globe. Earlier this year, a case filed against
Shell by EarthRights International and the Center for Constitutional
Rights got a major boost. This lawsuit claims the oil company is liable
for human rights abuses committed by the Nigerian military against the
Ogoni people, who opposed a Shell pipeline. Shell repeatedly filed
motions to dismiss the case, but in February a federal judge denied
these motions and permitted the case to move into the discovery phase.
Now the plaintiffs can take depositions of Shell officials and review
Texaco was sued in New York by indigenous people of Ecuador, who charged
it with destroying their local environment by dumping a million gallons
of toxic waste into the ecosystem for two decades. The company's
actions, they claim, devastated rainforest areas, caused an increase in
cancer and other diseases and brought several tribes to the brink of
extinction. In March the two sides argued about whether the case should
be dismissed on jurisdictional grounds. The court has not yet ruled. Two
years ago, residents of Bougainville Island in Papua New Guinea filed a
lawsuit in San Francisco against the London-based Rio Tinto mining firm.
The plaintiffs maintained that the corporation, which took over a
company that developed a mine on the island, was in cahoots with a
government that engaged in human rights abuses and destroyed entire
villages in wiping out local resistance to the project. In March a
federal judge dismissed the lawsuit after the State Department argued
that the case could interfere with an ongoing peace process in Papua New
Guinea. But the judge said the Papua New Guinea government would have to
agree to permit the plaintiffs to file a case there.
In addition to the Unocal case, the ILRF is handling ATCA lawsuits
against Coca-Cola (for allegedly using paramilitary forces to
suppress--violently--union activity in Colombia), Del Monte (for
allegedly employing thugs who tortured union leaders in Guatemala),
DynCorp (for allegedly spraying Ecuadorean farmers and villagers with
toxic chemicals that were supposed to be dumped on coca plants in
Colombia) and the Drummond Company, a mining firm (for allegedly hiring
gunmen to torture, kidnap and murder labor leaders in Colombia). In a
case against ExxonMobil, ILRF contends that Mobil, which formed a
joint-venture natural gas project with the Indonesian government, paid
the Indonesian military for security and that these troops committed
human rights atrocities--including murder and torture--against villagers
in the Aceh province.
As these ATCA lawsuits creep forward, corporations here and abroad have
to take notice. A plaintiff's win would compel transnationals to
consider bringing their activities overseas into sync with international
human rights standards. As the Wall Street Journal noted, a
ruling against Unocal--if upheld--"could subject a long list of US
companies to lawsuits in American courts as human rights groups seek to
expand the reach of American tort law to foreign soil." Already the
Street is paying attention. "I've started getting calls from mutual fund
managers," says Terry Collingsworth, ILRF's executive director. "They
tell me that they cannot base stock recommendations on moral
considerations. But if there is a chance a company could be damaged by a
big award in a trial, its business practices overseas become quite
relevant." That is, "the markets" are watching and waiting--to see if
Third World locals screwed by transnationals can find justice in courts
far from their villages.
Victims of domestic violence defend their right to keep their children.
Just-released inmates with infectious diseases need continuous treatment.
Why public and press have a right to witness military tribunal proceedings.
So what's it called if during war you criticize the President for any reason?
And how long does this war go on (and this is where this theory's really pretty clever)?