Black Robes Speak!: June 2009
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Tuesday, June 30, 2009

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


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.

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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.
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.
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.

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.

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Thursday, June 25, 2009

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.

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Monday, June 22, 2009

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.

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Thursday, June 18, 2009

U. S. Supreme Court Rules That A Defendant Has NO Constitutional Right To Post Conviction Access To State Evidence For DNA Testing.


You can read the opinion here.

"Respondent Osborne was convicted of sexual assault and other crimes in state court. Years later, he filed this suit under 42 U. S. C. §1983, claiming he had a due process right to access the evidence used against him in order to subject it to DNA testing at his own expense."

The Supreme Court, in its 5 to 4 decision authored by Chief Justice John Roberts, reversed the holding of the Appeals Court, and held instead that "[a]ssuming Osborne’s claims can be pursued using §1983, he has no constitutional right to obtain post conviction access to the State’s evidence for DNA testing."

Continuing, the court observed that "[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers,and our substantive-due-process rule making authority would not only have to cover the right of access but a myriad of other issues."

I particularly like Justice Samuel Alito's concurrence:

"I agree with the Court’s resolution of respondent’s constitutional claim. In my view, that claim also fails for two independent reasons beyond those given by the majority. First, a state prisoner asserting a federal constitutional right to perform such testing must file a petition for a writof habeas corpus, not an action under 42 U. S. C. §1983, as respondent did here, and thus must exhaust state reme-dies, see 28 U. S. C. §2254(b)(1)(A). Second, even though respondent did not exhaust his state remedies, his claim may be rejected on the merits, see §2254(b)(2), because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons [as Defendant in this case did] has no constitutional right to perform such testing after conviction."

Read more of Justice Alito's persuasively well reasoned concurring opinion, in which the other Conservative Justices, including Moderate Antony Kennedy.

As for the dissent, they picked the wrong case and set of facts to try to persuade that:

"Standing alone, the inadequacy of each of the State’s reasons for denying Osborne access to the DNA evidence he seeks would not make out a due process violation. But taken as a whole the record convinces me that, while Alaska has created an entitlement of access to DNA evidence under conditions that are facially reasonable, the State has demonstrated a combination of inattentiveness and intransigence in applying those conditions that add up to procedural unfairness that violates the Due Process Clause."

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Wednesday, June 10, 2009

U. S. Supreme Court Says No One Should Be Able To Buy Their Own Judge. Kentuckians: Are You Listening?

Read more here.

Knock, knock.

Anyone in Kentucky listening?

Update: Here is the text of the Supreme Court's opinion. The case is CAPERTON ET AL. vs. A. T. MASSEY COAL CO., INC. .

Enjoy the reading, particularly the wise observation by Justice Anthony Kennedy:

The proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory. In an election decided by fewer than 50,000votes, Blankenship’s campaign contributions—compared to the total amount contributed to the campaign, as well as the total amount spent in the election—had a significant and disproportionate influence on the outcome.

And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be for-bidden if the guarantee of due process is to be adequately implemented.” Ibid. The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

In as much as I like Chief Justice John Roberts, I am disappointed that he came up with this drivel in his dissent, joined by the other Conservatives.

While I understand the Chief's concerns as outlined in the questions he posed to the majority regarding clarity of the opinion (see the litany of 40 questions starting on page 28 and ending on page 40 of the opinion), unlike him, I see the majority's opinion as providing more of a "cure" that is better than "the disease" of buying justice.

Today, however, the Court enlists the Due Process Clause to overturn a judge’s failure to recuse because of a“probability of bias.” Unlike the established grounds for disqualification, a “probability of bias” cannot be defined in any limited way. The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

There is a “presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U. S. 35, 47 (1975). All judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise.

I also do not buy Justice Antonio Scalia's dire prediction that "[t]his course was urged upon us on grounds that it would preserve the public’s confidence in the judicial system [but t] he decision will have the opposite effect."

Indeed, the Majority's opinion will have the desired effect of "preser[ving] the public's confidence in the judicial", because the public will know that anyone intending to buy justice can NOW (becuase of this opinion) be STOPPED.

Hence, I say: may Justice Anthony Kennedy never depart from the Court. He seems to be a NEEDED voice of moderation on the court and common sense.

Enough said.

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Sorry For A Lack Of Updates Here, But Here Is One: U. S. Supreme Court Allows Military To Continue "Don't Ask. Don't Tell" Policy. Read More.

WASHINGTON (AP) - The Supreme Court on Monday turned down a challenge to the Pentagon policy forbidding gays and lesbians from serving openly in the military, granting a request by the Obama administration.

(Read more here.)

The court said it will not hear an appeal from former Army Capt. James Pietrangelo II, who was dismissed under the military's "don't ask, don't tell" policy.

The federal appeals court in Boston earlier threw out a lawsuit filed by Pietrangelo and 11 other veterans. He was the only member of that group who asked the high court to rule that the Clinton-era policy is unconstitutional.

In court papers, the administration said the appeals court ruled correctly in this case when it found that "don't ask, don't tell" is "rationally related to the government's legitimate interest in military discipline and cohesion."

During last year's campaign, President Barack Obama indicated he supported the eventual repeal of the policy, but he has made no specific move to do so since taking office in January. Meanwhile, the White House has said it won't stop gays and lesbians from being dismissed from the military.

Last year, the federal appeals court in San Francisco allowed a decorated flight nurse to continue her lawsuit over her dismissal. The court stopped short of declaring the policy unconstitutional, but said that the Air Force must prove that ousting former Maj. Margaret Witt furthered the military's goals of troop readiness and unit cohesion.

The decision by the 9th U.S. Circuit Court of Appeals was the first that evaluated "don't ask, don't tell" through the lens of a 2003 Supreme Court decision that struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy.

The administration did not appeal that ruling to the Supreme Court and Witt's lawsuit is ongoing.

The appeals court in Pietrangelo's case also took the high court decision into account, but concluded that it should defer to Congress' determination that the policy fosters cohesion in military units.

The case is Pietrangelo v. Gates, 08-824.

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