BREAKING News: U. S. Supreme Court Says Corporations Have A Constitutional Free Speech Right To Spend As They Will, To Support Or Defeat A Politician.

Read the opinion here.

Yes, this means corporations cannot be targeted for criminal or other sanctions to curtail their free speech in the political arena.

WOW.

U. S. Supreme Court Deals Major Setback To The ACLU's Attempt To Have "Torture" Pictures Released. Decision Is A Wise One. Read More Below.

The U. S. Supreme Court today summarily vacated and remanded a decision by the U. S. Court of Appeals for the Second Circuit that required the Pentagon to release photos of abused detainees in Iraq and Afghanistan.

The case is Deptartment of Defense v. ACLU, 09-160. The Court asked the lower court for further consideration under Section 565 of the Department of Homeland Security Appropriations Act, 2010.

The Act gives the Secretary of Defense the ability to prevent certain protected documents from being made public. Included in the definition of protected documents are photographs "taken during the period beginning on September 11, 2001, through January 22, 2009; and relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States."

Defense Secretary Robert Gates, fearing that the release of the photos would endanger American lives, exercised his authority under the Act in November. The American Civil Liberties Union (ACLU) has vowed to continue to fight for the photos to be released.

Editor's commentt: if you ask me, I suspect the fight is a losing one.

I agree with Secretary Gates that release of these pictures serves no useful purpose save to expose our country to even GREATER harm from terrorism.

In Another U. S. Supreme Court Opinion, States Are Given Power To Sue Banks To Protect Consumers & Minorities From Financial Discrimination Practices.

The case is CUOMO, ATTORNEY GENERAL OF NEW YORK v. CLEARING HOUSE ASSOCIATION, L. L. C., ET AL., 08–453 (2009).

You can read the opinion here.

The Majority opinion (5 t0 4) authored by Justice Antonin Scalia (the Court's most conservative Justice, who was joined by the Court's liberal Justices!), held, in a sharp rebuke to the Bush Administration, that states, not just only federal bank regulators, can compel banks (through the courts) to comply with rules meant to protect consumers from potentially unfair lending practices or pursue cases of potential discrimination against minorities.

Go to the opinion to read more, for I shall not analyze the case.

U. S. Supreme Court Overrules Judge Sonia Sotomayor, Says City Of New Haven, Connecticut, Discriminated Against White Fire Fighters. Read My Comments.

The case in question is RICCI ET AL. v. DESTEFANO ET AL., No. 07–1428 (2009).

You can read the (5 to 4) decision written by Justice Anthony Kennedy for yourself here.

By way of an extensive synopsis, below is how the Court saw the case:

"New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity.

Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials,alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.

Held: The City’s action in discarding the tests violated Title VII.
(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). Pp. 17–19.
(b)
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.

The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision-making is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the re-medial actions were necessary. Richmond v. J. A. Croson Co., 488, S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267,
277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476
U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the re-medial program is challenged in court by non minority employees.” Ibid. The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions. Apply-ing the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see §2000e–Cite as: 557 U. S. ____ (2009), and the section that expressly protects bona fide promotional exams, see §2000e–2(h).

Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. Pp. 19–26.
The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 26–34.
(i)
The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Pp. 26–28.

(ii)
The City’s assertions that the exams at issue were not job re-lated and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. Pp. 28–29.

(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respon-dents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results,§2000e–2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. Pp. 29–33.

(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability."

Editor's comment: The Court simply concluded that the city did NOT have a "strong basis in evidence" that the remedial actions of invalidating the test results in this case were a justified business necessity, or that there were reasonable alternatives that could have prevented the discrimination, or that the city was somehow justified in its fears that it would be sued for "disparate impact" discrimination considering this decision.

Question: but how was the city to know that its fears were not justified before this court's decision? It sure sounds to me like the Court has engaged in Monday morning quarterbacking.

But look at what Justice Samuel Alito found to be the real reason for the court's (or his sole) finding of No "strong basis in evidence" for the city's actions:

"Taking into account all the evidence in the summary judgment record, a reasonable jury could find the following. Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked—as things turned out, successfully to persuade the (New Haven Civil Service Board) CSB that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decision making authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency."

But read excerpts from very persuasive dissenting Justice Ruth Bader Ginsberg, who draws the White fire fighters "sympathy", but who nonetheless predicted that the majority opinion "will not have staying power.":

"The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes."

Moreover, continued Justice Ginsburg: "Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate-treatment and disparate-impact provisions [and t]itle VII’s disparate-treatment and disparate-impact proscriptions must be read as complementary. ...

Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulate an employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.” Ante, at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself. ...

The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strong-basis-in-evidence standard. When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance." ...

Continuing, Justice Ginsberg took issue with the city's test itself:

"Relying heavily on written tests to select fire officers is a questionable practice, to say the least. Successful fire officers, the City’s description of the position makes clear, must have the “[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.” CA2 App. A432. These qualities are not well measured by written tests. ...

Interpreting the Uniform Guidelines, EEOC and other federal agencies responsible for enforcing equal opportunity employment laws have similarly recognized that, as measures of “interpersonal relations” or “ability to function under danger (e.g., fire-fighters),” “[p]encil-and-paper tests . . . generally are not close enough approximations of work behaviors to show content validity.”

"Given these unfavorable appraisals, it is unsurprising that most municipal employers do not evaluate their fire officer candidates as New Haven does. ...

Among municipalities still relying in part on written exams, the median weight assigned to them was 30 percent—half the weight given to New Haven’s written exam. Testimony before the CSB indicated that these alternative methods were both more reliable and notably less discriminatory in operation."

And, continuing the Justice, "Testimony before the CSB also raised questions concerning unequal access to study materials, see id., at A857–A861, and the potential bias introduced by relying principally on job analyses from nonminority fire officers to develop the exams".

Continuing my Editor's comment: Many of you know that I have long complained in posts about the city's tests, as I found those to be NOT related to job performance, and NOT designed specifically for the city. Hence, I Agree with Justice Ginsburg when she states that "[t]his case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first lace."

So the real issue for me in this case is who gets to pay for the mistake made by the city for its adherence to a FLAWED test?

I say: It's NOT ANY of the the fire fighters -- whether White or Black.

The city created the mess; it needs to clean it up.

That's just my opinion.

If you want to know quick details about the case, check it out here.

U. S. Supreme Court Rules That "Strip Search" Of A Teenager By School Officials Looking For Prescription Drugs Is Unreasonable Under Fourth Amendment.

The case is SAFFORD UNIFIED SCHOOL DISTRICT #1 ET AL. v. REDDING, No. 08–479 (2009).

You can read the opinion here.

In essence, the court, through Justice David Souter, held (8 to 1, with Clarence Thomas dissenting):

The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought for-bidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability.

...
Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil,or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.

Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “students . . . hid[e] contraband in or under their clothing,” Reply Brief for Petitioners 8, and cite a smattering of cases of students with contraband in their underwear, id., at 8–9. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But non dangerous school contraband does not raise the specter of stashes inintimate places, and there is no evidence in the record of any general practice among Safford Middle School stu-dents of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing.

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

The court went on to extend qualified immunity to those school staff who conducted the search, in essence suggesting that they could not have known better because the law was not clear regarding the permissibility of their conduct.

Other justices, who formed the Majority, agreed that the strip search was unlawful (Justices John Paul Stevens and Ruth Bader Ginsburg) but dissented in part, arguing that the school officials were not entitled to qualified immunity.

The Court's lone dissenter, Justice Clarence Thomas, abandoned by his Conservative colleagues on the Court, found that the strip search was constitutional, arguing that:

The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.”

Editor's comments: As a result of this ruling, school officials are NOW under WARNING that they will no longer be given the kind of qualified immunity these school officials enjoyed here because of "unsettled law" in the area.

Secondly, it is CLEAR from the ruling that only illegal DANGEROUS drugs (or street drugs) will permit the kind of strip search that took place here.

Another Breaking News: U. S. Supreme Court Upholds Voting Rights Act, But Gives Texas District A FREE Pass. Watch Video.

Sorry, I do not have time tonight to analyze the opinion. I'll do so tomorrow, so come back for my analysis and comments.

See you then.

Editor's comment: OK, here is the essence of the Court's opinion, in NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE v. HOLDER, ATTORNEY GENERAL, ET AL, 08-322 (read the opinion here):

"We therefore hold that all political subdivisions—not only those described in §14(c)(2)—are eligible to file a bailout suit.

* * * More than 40 years ago, this Court concluded that“exceptional conditions” prevailing in certain parts of the country justified extraordinary legislation otherwise un-familiar to our federal system. Katzenbach, 383 U. S., at 334. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional ques-tion we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements."

More importantly, the Court warned that it found a SERIOUS CONSTITUTIONAL problem with section 5 of the VRA:

"Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, NAACP v. Hampton County Election Comm’n, 470 U. S. 166, 175–176 (1985),and in particular to every political subdivision in a covered State, no matter how small, United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110, 117–118 (1978)."

So what does it all mean, you ask?

It means that Congress MUST take steps to amend the VRA IMMEDIATELY to take advantage of the court's ruling, otherwise the next time a case comes before the court, the court could find the act unconstitutional -- not in the general "FACIAL" sense, but in the limited "AS APPLIED" sense, though Justice Clarence Thomas will do a facial, as you can sense from his dissenting opinion in this case:

"In 1870, the Fifteenth Amendment was ratified in order to guarantee that no citizen would be denied the right to vote based on race, color, or previous condition of servitude.

Congress passed §5 of the VRA in 1965 because that promise had remained unfulfilled for far too long. But now—more than 40 years later––the violence, intimidation, and subterfuge that led Congress to pass §5 and this Court to uphold it no longer remains. An acknowledgment of §5’s unconstitutionality represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA."