The First Amendment Protects Students’ Rights to Speak on Religious Subjects
If the First Amendment means anything, then school officials cannot prohibit students from handing out gifts with Christmas messages due to the religious content of those messages. Nonetheless, the Fifth Circuit held en banc that student speech rights are not “clearly established,” and that, therefore, two Plano, Texas officials could invoke qualified immunity to shield themselves from liability for doing so.
Yesterday Cato filed an amicus brief supporting the students’ request that the Supreme Court hear their case—our third brief in this long-running saga. We argue that educators have fair warning that viewpoint-based discrimination against student speech violates the First Amendment and thus may not invoke qualified immunity.
While the Fifth Circuit held that a constitutional right must have previously been defined with a “high degree of particularity” in a case that is “specific[ally] and factually analogous” to be clearly established, the Supreme Court has repeatedly said that neither “fundamentally similar” nor “materially similar” cases are required and that general statements of law can give fair warning. Indeed, if the Fifth Circuit’s qualified-immunity standard is upheld, it will be so difficult to establish fair warning for unconstitutional actions that qualified immunity will cease to be “qualified.”
Student speech rights were clearly established by the foundational student-rights case of Tinker v. Des Moines School District (1969), wherein the Court held that student speech cannot be suppressed unless the speech will “materially and substantially disrupt the work and discipline of the school,” subject to limited exceptions. Such exceptions include lewd or vulgar speech, or speech that may reasonably be viewed as advocating unlawful drug use. Certainly the student speech at issue here, which included Christmas greetings written on candy canes, and pencils and other small gifts with messages like “Jesus loves me, this I know, for the Bible tells me so,” does not fall under those exceptions.
We further argue that the same standard for determining whether a law is clearly established should determine whether a court can look to nonbinding precedent; if Supreme Court and relevant-circuit precedent is on point, courts should not look to authority from other jurisdictions. These standards maintain the proper balance between providing officials with fair notice of behavior that could result in civil liability and ensuring that individuals have legal recourse when their rights are violated.
The Supreme Court will decide later this winter whether to take the case, Morgan v. Swanson, and hear argument in the fall.
Thanks to Cato legal associate Anastasia Killian for her help with this post, and with our brief.
The Longhorn Mismatch: Too Much Racial Preference, Too Little Success
Last week the Supreme Court asked the University of Texas to respond to a cert petition raising an issue that in any non-Obamacare year would be the most explosive part of the Court’s docket: racial preferences in higher education. (UT had for some inexplicable reason failed even to file a waiver, which is customary in cases where the respondent feels no need to file an actual brief.)
The case was brought by Abigail Fisher, a white Texan denied admission to UT-Austin even though her academic credentials exceeded those of admitted minority students. The district court granted summary judgment to the university and the Fifth Circuit panel affirmed because a divided Supreme Court in the 2003 case of Grutter v. Bollinger (the University of Michigan case) found narrowly tailored racial preferences to be constitutionally justified for the sake of diversity. Judge Emilio Garza wrote an electrifying concurrence — starting at page 58 here — agreeing that the ruling was correct under Grutter but that Grutter itself, and the regime of “soft” racial preferences (i.e., not quotas) it created, is incompatible with the Equal Protection Clause.
The Fifth Circuit then denied en banc rehearing by a vote of 7-9, over a sharp dissent by Chief Judge Edith Jones. (Full disclosure: The judge I clerked for lo those years ago, E. Grady Jolly, joined Chief Judge Jones’s dissent.)
Fisher’s cert petition objects to the wide discretion the Fifth Circuit would grant UT in administrating its racially preferential admissions paradigm, arguing that affording deference to the university extends Grutter and cannot be consistent with the “strict scrutiny” Grutter requires. Indeed, rather than working to phase out public university race preferences consistent with the expectations the Court articulated in Grutter – Justice O’Connor famously wrote that the diversity rationale would only suffice for about 25 years – the Fifth Circuit provides a veritable roadmap for discriminatory state action.
Now, it would be ideal if all nine justices were courageous enough to uphold constitutional protections for all citizens by refusing to legitimize racially discriminatory state action, regardless of the good-faith motives or other political atmospherics surrounding that action. Progressive legal theory being what it is, however, such a result, where people are judged on the content of their character/qualifications rather than the color of their skin, is unfortunately still a dream. There is, however, an argument that might sway even those members of the Court who support affirmative action as a policy matter: race preferences hurt those they are intended to help.
As highlighted in Richard Sander and Stuart Taylor’s amicus brief, a growing body of research suggests that when the capabilities of a student’s peers exceed their own, the student performs worse than when surrounded by peers with objectively similar capacities. Sander (a UCLA economist and law professor) and Taylor (a lawyer and journalist who has long covered civil rights issues) utilize this “mismatch theory” to discredit the assumption underlying race preference programs — that they benefit minorities — and demonstrate that the opposite is true. They further point out that racial preferences have failed to have their intended effects; namely, preventing racial balancing, fostering diversity, and making universities more attractive to minorities.
Three U.S. Civil Rights Commissioners also filed an amicus brief presenting evidence that racial preferences produce the opposite of their intended effect; they discourage rather than facilitate the entry of minorities into prestigious careers by incentivizing elite public universities to admit students they would not admit if admissions were race-blind. They argue that racial preferences place students in environments that do not optimize to their learning. Citing robust statistics, they conclude that this effect actually discourages minorities from entering science and engineering careers and becoming college professors, and decreases the number of minority students accepted to law schools who actually earn JDs and pass the bar exam.
The well-intentioned advocates of race-conscious public university admissions got it wrong under the Constitution. These briefs further illustrate the detriment everyone in society suffers when state action based on race rather than merit dictates the paths of young Americans.
Under the Court’s request for a response, the university has until the end of the month to file, unless it asks for and is granted an extension. If the university’s response arrives by January, the case — if the Supreme Court takes it – should be on schedule for argument and decision this term. For more on Fisher v. University of Texas, see the case’s SCOTUSblog page.
Thanks to Cato legal associate (and UT alumna) Anna Mackin for help with this blogpost.
Supreme Court Should Uphold Incentives to Sue the Government
Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.
In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.
Cato, joining the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech, filed a brief supporting a request that the Supreme Court reverse the Fifth Circuit and making three points:
First, by awarding the defendant fees for the entire suit based on the dismissal of one claim, the Fifth Circuit’s decision imposes prohibitive costs on the enforcement of civil rights.
Second, the exceptional timing of the fee award in this case — before resolution of the plaintiff’s related state-law claims — creates a dangerous precedent that threatens to derail civil rights actions. By prematurely deeming a plaintiff’s suit frivolous and ordering the plaintiff to pay the defendant’s fees before the conclusion of the litigation, the Fifth Circuit’s rule imposes financial penalties that would shut down legitimate lawsuits midstream.
Third, the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court. Otherwise, the threat of a fee award will improperly burden the plaintiff’s decision to bring a federal claim in state court at all — contrary to the law’s purpose here.
In addition to reversing the judgment below, the Court should reinforce that a mid-litigation fee award is improper when a plaintiff voluntarily drops a federal claim in order to return to state court. The Court will hear Fox v. Vice on March 22, with a decision expected in June.
Recusal Rules Impact Environmental (and Other) Litigation
Two weeks ago I blogged about the dismissal of the Katrina-related global warming case because half the judges on the Fifth Circuit were recused for having financial interests in the energy companies and utilities (which the plaintiffs chose specifically to gain recusals but mis-timed their strategy). Well, now it seems that many judges on the Gulf Coast are recusing themselves from the nascent (and future) oil spill suits, again because they own shares of BP, Transocean, and the other companies involved. Indeed, over half the federal district judges in the affected states — Texas, Louisiana, Mississippi, Alabama, and Florida — will not be participating in these cases, leading to calls to appoint judges from elsewhere in the country to handle them.
That’s ridiculous! Owning a few hundred or thousand dollars worth of shares of stock is not enough to change the way a judge will behave, particularly when the public knows which judge owns which stock. If we cannot agree that such purported “conflicts” don’t really show an appearance of impropriety — if we really doubt the integrity of our judiciary to such an extent — then we might as well throw out the ethics rules, throw up our hands, and declare the country ungovernable. (I’m reminded of the Carrie Underwood song, “Jesus Take the Wheel.”)
Moreover, the financial conflict rules are murky. As this AP story discusses, ”a judge does not have to step aside if the investments are part of a mutual fund over which they have no management control. Mere ties to companies or entities in the same industry, no matter how extensive, also don’t require disqualification.” So here we’re valuing form over substance.
Look, maybe this is just a pet peeve of mine – it’s not an ideological issue one way or the other — but I think you just have to apply the “reasonable skeptic” standard. Every judge is human and has his various biases. It’s one thing to recuse if counsel for one of the parties is the judge’s spouse or child, or if half the judge’s wealth is invested in one of the parties. But dinky little “abundance of caution” recusals cost the justice system more in administrative hassle, sunk attorney fees, and other wastes of time and money than they benefit it in increased integrity.
As for the oil spill litigation, the U.S. Judicial Panel on Multidistrict Litigation — which looks at complex cases on similar issues brought in disparate venues — meets July 29 in Boise, Idaho (of all places), to hear arguments on consolidation. In light of the aforementioned recusals, the Louisiana cases may well be sent to Alabama, Mississippi, or South Florida — or a federal courthouse near you!
Global Warming Plaintiffs Hoisted on Their Own Petard
We have reached a denouement of sorts in the “blame XYZ companies for causing global warming which caused Hurricane Katrina which damaged my property” lawsuit that I’ve previously discussed and in which Cato filed an amicus brief. When last I blogged about this, the Fifth Circuit had apparently lost its en banc quorum — a late judicial recusal left only 8 of 16 judges available to hear the appeal — and was figuring out what to do.
Well, on Thursday the court issued an order determining that it lacked a quorum, but that the panel opinion — the one that allowed the tendentious causation claims to proceed — remained vacated. The money quote: “In sum, a court without a quorum cannot conduct judicial business. . . . Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.” This means that the district court opinion dismissing the suit stands, though plaintiffs are free to seek Supreme Court review. Not surprisingly, the three judges on the panel dissented from this order (which means that the order was decided by a 5-3 vote).
The upshot of all this is that the plaintiffs ended up botching their strategy of suing companies whose shares are owned by Fifth Circuit judges. This clever legerdemain successfully removed seven judges, but that left a quorum of nine. Of course, had the late-recusing eighth, Jennifer Elrod — who would’ve been expected to rule against the plaintiffs – recused when the first seven did, the court could not have vacated the panel opinion in the first place. We’ll never know what happened after the court’s prior decision to grant rehearing that caused Judge Elrod to recuse, but at least we’re left with the second-best result: no strong decision from an important federal appellate court, but the reinstatment of the correct decision below.
Big Global Warming Case Hinges on Weird Procedural Technicality
Nearly two weeks ago, I blogged about some strange procedural developments in the big global warming case coming out of the Gulf Coast, Comer v. Murphy Oil USA. On the eve of final briefing deadlines before the en banc Fifth Circuit, an eighth judge of that court recused from the case (we don’t know the reason, but the previous seven recusals were presumably due to stock ownership) and so the court was faced with an unprecedented situation: losing an en banc quorum after previously having had enough of one to vacate the panel decision and grant en banc rehearing in the first place. We were all set to file our brief when the Clerk of the Fifth Circuit issued an order notifying the parties of the lost quorum and canceling the scheduled hearing — and nothing more. Out of an abundance of caution, we decided to go ahead with filing late last week.
Again, here’s the situation: Mississippi homeowners sued 34 energy companies and utilities operating in the Gulf Coast for damage sustained to their property during Hurricane Katrina. The homeowners alleged that the defendants had emitted greenhouse gases, which increased the concentration of greenhouse gases in the atmosphere, which contributed to global warming, which accelerated the melting of glaciers, which raised the global sea level, which increased the frequency and severity of hurricanes, which caused the destructive force of Hurricane Katrina. The district court concluded that it lacked the authority to resolve the public debate over global warming and dismissed the case. A Fifth Circuit panel reversed this dismissal, holding that the homeowners have standing to raise some of their claims and that those claims are appropriate for resolution by the federal courts. The Fifth Circuit then granted rehearing en banc.
Cato filed an amicus brief on the energy companies’ behalf, arguing that homeowners lack standing to bring their suit and that the case raises a nonjusticiable political question. Our brief asserts that the homeowners’ claim does not provide a clear causal connection between the harm suffered and any particular conduct by the energy companies, and that the money damages the homeowners requested would not remedy the environmental harm alleged. More importantly, we maintain that political questions such as those surrounding climate change must be resolved by Congress, not the federal courts. Put simply, the Constitution prohibits federal courts from resolving highly technical social and economic policy debates. Permitting plaintiffs to achieve “regulation by litigation” would not only contradict settled Supreme Court precedent, but would betray the separation of powers principles embodied in the Constitution.
The Clerk has since directed the parties to brief the procedural issues surrounding the apparent lost quorum, which letter-briefs came in this week (as a mere amicus, we did not file on this). I’ll spare you the technical details, but there are three possible ways in which the Fifth Circuit could now rule: 1) the court actually does have a quorum and thus oral argument is resecheduled; 2) the panel decision is reinstated (with an ensuing cert petition appealing that decision to the Supreme Court); and 3) the district court is affirmed without opinion (the same result as when an appellate court vote is tied). Stay tuned — this is a truly weird denouement to a hugely important case.
Of Butterflies, Tsunamis, and Draconian Recusal Standards
Last October, I blogged about Comer v. Murphy Oil USA, a lawsuit in Mississippi alleging that the defendant oil, coal, utility, and chemical companies emit carbon dioxide, which causes global warming, which exacerbated Hurricane Katrina, which damaged the plaintiffs’ property. Mass tort litigation specialist Russell Jackson called the case “the litigator’s equivalent to the game ‘Six Degrees of Kevin Bacon.’” In a brief that Cato was due to file this week, I framed the operative question as, “When a butterfly flaps its wings, can it be sued for the damage any subsequent tsunami causes?”
The plaintiffs asserted a variety of theories under Mississippi common law, but the main issue at this stage was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendants’ actions. The federal district court dismissed the case but a dream panel (for the plaintiffs) of the Fifth Circuit Court of Appeals held that the plaintiffs could indeed proceed with claims regarding public and private nuisance, trespass, and negligence.
In my blog post, I predicted that the Fifth Circuit would take up the case en banc (meaning before all the judges on the court, in this case 17) and reverse the panel. And this was all set to happen — even though eight judges recused themselves, presumably because they owned shares of defendant companies – with en banc argument slated for May 24. I was planning to head down to New Orleans for it, in part because the judge I clerked for, E. Grady Jolly, was going to preside over the hearing (the only two more senior active judges being recused).
But a funny thing happened on the way to legal sanity. On Friday, not half an hour after I had finished editing Cato’s brief, the court clerk issued a notice informing the parties that one more judge had recused and, therefore, the en banc court lacked a quorum. As of this writing, I still don’t know who this judge is and what circumstances had changed since the granting of the en banc rehearing to cause the recusal. And indeed, by all accounts the Fifth Circuit is still figuring out what to do in this unusual (and, as far as I know, unprecedented) situation where a court loses a quorum it initially had — having already vacated the panel decision.
In short, the court could decide that the vacatur stands and either remand to a (now-confused) district court or rehear the case in a new random panel assignment. More likely, however, the court will now reinstate the terrible, horrible, no good, very bad panel decision — and we’ll tweak our brief to make into one that supports the defendants’ inevitable cert petition.
All in all, an illustration of the absurdity both of litigating climate change politics in the courts and of forcing judges (including Supreme Court justices) to withdraw from cases for owning a few hundred dollars’ worth of stock. If that’s all it takes to corrupt federal judges, we have bigger problems than trial lawyers run amok!
Students Have the Right to Free Speech, Too
A northern Texas school district attempted to banish all religious expression from its schools by prohibiting virtually all non-verbal student speech in any school-related context. Officials used this broad policy to promote an anti-religious orthodoxy and root out any and all religious speech. The Supreme Court made clear, however, in its seminal school speech case, Tinker v. Des Moines Independent Community School District, that students enjoy First Amendment rights, and that core political and religious speech cannot be suppressed without showing that the speech will “materially and substantially disrupt” the educational process.
Here, the Fifth Circuit upheld all of the district’s regulations and found that Tinker did not supply the relevant legal standard. It instead applied the intermediate scrutiny “time, place, and manner” test of United States v. O’Brien. At issue is whether the school district’s speech policy should be evaluated under Tinker’s “substantial disruption” standard or under O’Brien’s intermediate scrutiny.
Cato, joined by three groups that promote religious liberty, filed a brief asking the Supreme Court to take up the case because the Fifth Circuit’s approach permits schools to enforce sweeping speech codes by which virtually all speech may be prohibited. Permitting a wholesale content- and viewpoint-neutral ban on all speech or a form of speech as an alternative to the Tinker standard will result in the erosion and eventual elimination of student speech rights.
The name of the case is Morgan v. Plano Independent School District; the Court will likely decide by the end of June whether to hear the case this fall.
Next Move: Suing the Sun for Unseasonably Cool Weather
The New Orleans-based Fifth Circuit, the federal court of appeals where I once clerked, has allowed a class action lawsuit by Hurricane Katrina victims to proceed against a motley crew of energy, oil, and chemical companies. Their claim: that the defendants’ greenhouse gas emissions raised air and water temperatures on the Gulf Coast, contributing to Katrina’s strength and causing property damage. Mass tort litigation specialist Russell Jackson calls the plaintiffs’ claims “the litigator’s equivalent to the game ‘Six Degrees of Kevin Bacon.’”
In Comer v. Murphy Oil USA, the plaintiffs assert a variety of theories under Mississippi common law, but the main issue at this stage was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendant’s actions. The court dismissed several claims but held that plaintiffs indeed could allege public and private nuisance, trespass and negligence. The court also held that these latter claims do not present a so-called “political question” that the court doesn’t have the authority to resolve. You can read about the Court’s ruling in more detail at the WSJ Law Blog and Jackson’s Consumer Class Actions and Mass Torts Blog.
This is actually the second federal appeals court to rule this way; last month, the Second Circuit (based in New York) held that states, municipalities and certain private organizations had standing to bring federal common law nuisance claims to impose caps on certain companies’ greenhouse gas emissions. Here’s the opinion in that case, Connecticut v. American Electric Power Company, and you can read a pretty good summary and analysis here.
Both of these cases, which herald a flood of global warming-related litigation, so to speak, owe their continuing vitality to the Supreme Court’s misbegotten 2007 decision in Massachusetts v. EPA. The 2006-2007 Cato Supreme Court Review covered that case in an insightful article by Andrew Morriss of the University of Illinois. (To get your copy of the latest (2008-2009) Review, go here.)
I should note from my own experience at the Fifth Circuit that the panel here consisted of the two worst judges on the court — Clinton appointees Carl Stewart and James Dennis — and one of Reagan’s weakest federal appellate appointments, Eugene Davis. Even Davis, however, wrote separately to note that while he agreed on the standing issue, he would have affirmed the district court’s dismissal of the suit on a different ground (that pesky proximate cause issue).
I predict that the full (16-judge) Fifth Circuit will review this case en banc –and if not that the Supreme Court will eventually take it up (if the district court on remand doesn’t again dispose of the case on causation grounds).
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