September 29, 1999 12:00 am

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Statement of Steven R. Shapiro ACLU Legal Director

FOR IMMEDIATE RELEASE Wednesday, September 29, 1999

The Court’s 1999 Term begins where its 1998 Term ended, with questions of federalism once again high on the Court’s agenda. This year, however, the Court’s consideration of those questions comes even closer to core concerns of the civil rights community. The Court has already agreed to hear three civil rights cases involving important federal statutes in which the state’s rights claim prevailed below. In addition, at least one other significant case looms on the horizon.

A Focus on Federalism

The constitutionality of a key civil remedy enacted by Congress as part of the Violence Against Women Act is squarely before the Court in Brzonkala v. Morrison (99-29), and United States v. Morrison (99-29). In striking down the provision, the Fourth Circuit concluded that Congress had exceeded its authority under both the Commerce Clause and the Fourteenth Amendment. Judge Luttig’s majority opinion for the court below represents a virtual manifesto for states’ rights.

In Reno v. Condon (98-1464), Fourth Circuit ruled that Congress had violated the Tenth Amendment when it enacted the 1994 Driver’s Privacy Protection Act to prohibit the states from disclosing personal information contained in their motor vehicle records.

The Clinton Administration defended the statute in the lower courts on two grounds. First, it argued that Congress had properly acted pursuant to the Commerce Clause since it is undisputed that these records are frequently sold to mail order businesses in other states. Second, the government contended that the statute was designed to protect the constitutional right of informational privacy and was therefore properly enacted pursuant to Section 5 of the Fourteenth Amendment.

Both arguments were rejected by the Fourth Circuit and the government has chosen to pursue only the Commerce Clause claim in the Supreme Court. The ACLU nevertheless joined with other civil rights groups in an amicus brief highlighting the real world consequences of the privacy claim by pointing out to the Supreme Court how access to motor vehicle records has been used in the past to intimidate women seeking a confidential abortion.

The federalism issue arises in a slightly different context in Kimel v. Florida Board of Regents (98-791), and its related case, United States v. Florida Board of Regents (98-796). There, the Fifth Circuit held that the Age Discrimination in Employment Act (ADEA) could not be applied against the states. In the Fifth Circuit’s view, Congress had not adopted a clear statement of its intent to override the states’ Eleventh Amendment immunity despite the fact that Congress amended the ADEA in 1974 to include the states and their political subdivisions within the statutory definition of an employer. Having resolved the issue in favor of the state on statutory interpretation grounds, the court below found it unnecessary to reach the question of whether the ADEA was a constitutional exercise of Congressional power under Section 5 of the Fourteenth Amendment. Two of the three panel members, however, did reach that larger question in individual opinions and reached totally opposite conclusions. What remains to be seen is whether the Supreme Court will likewise reach the Section 5 question if it disagrees with the Fifth Circuit’s statutory interpretation, or instead remands for further proceedings.

In a related context, the Eighth Circuit recently struck a serious blow against federal disability law when it held, in Bradley v. Arkansas Dep’t of Education (Aug. 31, 1999), that neither the Individuals with Disabilities Education Act (IDEA) nor Section 504 of the Rehabilitation Act could override the Eleventh Amendment because neither was “appropriate” legislation under Section 5 of the Fourteenth Amendment. The impact of the IDEA ruling was perhaps muted by the court’s conclusion that a state waives its Eleventh Amendment immunity by accepting IDEA funds. However, the Eighth Circuit expressly refused to extend the waiver rationale to Section 504, which bars a state that receives any federal funds from discriminating on the basis of disability. Unless reversed en banc, Bradley is likely to be appealed to the Supreme Court.

On a final federalism note, the Court granted certioriari earlier this month in a trio of preemption cases. United States v. Locke (98-1701), and Int’l Ass’n of Independent Tanker Owners v. Locke (98-1706), both deal with the question of whether the states can impose more stringent regulations on ocean-going oil tankers than the federal government in an effort to protect against the potentially devastating consequences of an oil spill. The states have so far prevailed in that battle. By contrast, in Geier v. American Honda Motor Co. (98-1811), the D.C. Circuit held that states could not impose tort liability on car manufacturers for their failure to install air bags in their 1987 models when federal law specifically provided that they were not required to do so.

Federalism, of course, is not the only issue on the Supreme Court’s docket, although it is an increasingly significant one. In Mitchell v. Helms (98-1648), the Court has been asked to decide whether the Establishment Clause permits the government to provide parochial schools with library books and audiovisual equipment. Although the case was filed in a pre-digital age, both the state defendants and the Clinton Administration have tried very hard to shift the emphasis to computers. Neither, however, has adequately explained how it is possible to ensure that whatever equipment the government provides is not used to aid in religious instruction. For this reason, among others, the federal aid program was largely struck down by the Fifth Circuit.

Before the Term is over, the Court may also have an opportunity to express its views on several other hotly contested church-state debates raised in pending petitions for certiorari. In Kotterman v. Killian (98-1716), and Rhodes v. Killian (98-1718), the Court has been asked to review the constitutionality of an Arizona statute that grants a tax credit for contributions to charitable organizations whose sole purpose is to provide tuition assistance to private school students, the overwhelming majority of whom will attend parochial school.

In Bagley v. Raymond School District (99-163), and Stroud v. Albanese (99-254), petitioners have claimed that local school districts in Maine that do not have their own high school must provide the same tuition assistance to students who attend parochial schools as they now provide to students who attend neighboring public high schools. An order granting certiorari in any of these cases could well shed light on the Court’s attitude toward school vouchers. The issue of so-called “student-initiated” prayer could come before the Court in Santa Fe Independent School District v. Doe (99-62), where the Fifth Circuit distinguished between proselytizing and non-proselytizing prayer, and between football games and graduation ceremonies.

Limits on Free Expression

In the area of free speech, the Court will be returning to familiar ground in two cases arising from government efforts to regulate sexually explicit expression. In Erie v. Paps, A.M. (98-1161), the Court has been asked to reconsider its 5-4 decision in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), upholding the state’s power to ban nude dancing. And, in United States v. Playboy Entertainment Group, Inc. (98-1682), the question is whether premium cable channels that feature sexually explicit programming can be forced to air only late at night because of the problem of so-called “signal bleed,” even though parents who object to signal bleed already have an absolute right to insist that the cable signal be completely blocked on their home set.

In Hill v. Colorado (98-1856), the Court will revisit the issue of abortion clinic protest when it reviews a Colorado law that creates an eight-foot “floating buffer” around patients and staff within 100 feet of a health care facility, and prohibits protestors from approaching closer than eight feet without consent “for the purpose of counseling.” Following the U.S. Supreme Court’s decision in Schenck v. Pro-Choice Network, 519 U.S. 357 (1997), the case was remanded to the Colorado Supreme Court, which again upheld the statute.

The politically charged question of campaign finance reform also returns to the Court in Nixon v. Shrink Missouri PAC (98-963). The narrow but important question presented is whether the government is obligated to come forward with some evidence that its contribution limits have been calibrated to deal with an actual problem of corruption or the appearance of corruption. In a separate petition for certiorari (98-978), the intervenors in Shrink asked the Court to use the case as an occasion to reconsider Buckley itself. The Court’s decision to defer consideration of the intervenors’ petition makes that outcome appear less likely. Still, the ACLU’s amicus brief highlights the irrationality of the post-Buckley world and explains why a system of public financing is far more likely to achieve meaningful campaign finance reform without the constitutional problems that have plagued the limits-driven approach.

A different sort of First Amendment question is raised by Board of Regents of the University of Wisconsin v. Southworth (98-1189). The case was filed by a group of students who object to the fact that they are required to pay a mandatory activity fee that is used, in part, to fund student groups whose ideological views they do not share. Relying on a line of cases dealing with compelled speech, the Seventh Circuit agreed and struck down the mandatory fee provision. As the ACLU pointed out in its amicus brief, however, the Seventh Circuit’s reasoning cannot be reconciled with the Supreme Court’s approach in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), where the majority held that the use of mandatory fees to fund a religious journal did not violate the Establishment Clause because the mandatory fee system created a public forum that was open to all eligible student groups on a nondiscriminatory basis. If Rosenberger is correct, then the Seventh Circuit was wrong. Conversely, we contend, Southworth cannot be affirmed without overruling Rosenberger.

A Question of Equal Protection

The major equal protection case before the Court this Term is Rice v. Cayetano (98-818). The Office of Hawaiian Affairs (OHA) was created by state law to administer a trust fund for the exclusive benefit of Hawaiians, who are defined as descendants of the aboriginal people who inhabited the islands in 1778, when the first westerners arrived. The plaintiff in this case does not challenge the dedication of those funds for the benefit of Hawaiians. He does, however, challenge, the state law provision that only Hawaiians can vote for the OHA trustees at a public election. The outcome of the case is likely to depend on the Supreme Court’s characterization of the issue. If it agrees with the Ninth Circuit that the challenged provision most closely resembles the treatment of Native Americans in various federal statutes, and that it is more closely tied to history than race, the voting restriction is likely to be upheld. On the other hand, the Court is likely to react with great skepticism if it agrees with the plaintiff that Hawaii has imposed a racial classification on voting.

Judicial Independence, Police Powers, and a Check on Civil Rights Litigation

The most important habeas corpus case on the Court’s docket this year is Williams v. Taylor (98-8384), which involves one of the key provisions of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). Put in simple terms, the question presented is whether a state prisoner who has been unconstitutionally convicted can be denied habeas relief in federal court unless the prisoner can show that the state courts were not only wrong but unreasonable in their judgment. In our view, the language of AEDPA does not compel that conclusion, nor would it be consistent with the history and purpose of what has long been described by the Supreme Court itself as “The Great Writ.”

The issues are equally stark in Illinois v. Wardlow (98-1036). One year after the Supreme Court decided that the Chicago Police cannot force people to disperse on pain of arrest if they have not otherwise engaged in disruptive behavior, the question in this case is whether the Chicago Police can stop and frisk people on the street merely because they disperse when they see the police arrive. As the state’s highest court observed, it makes little sense to say that otherwise innocent people have an absolute right to walk away without answering a police officer’s questions on the street but no right to “flee” when the officer first approaches.

In Friends of the Earth v. Laidlaw Environmental Services, Inc. (98-822), brings before the Court an important question of mootness under the Clean Water Act. It also provides the Court with an opportunity to rule on an important question of attorney’s fees. It is frequently the case that a civil rights plaintiff can achieve relief outside the courtroom because the filing of a lawsuit prods the defendant into changing its behavior before the litigation is ever formally resolved. The Fourth Circuit stands alone in rejecting the “catalyst” theory for attorney’s fees under these circumstances.

Finally, in a case with enormous symbolic importance, the Court has been asked to review the Fourth Circuit’s decision in Dickerson v. United States (99-5525), which held that Congress effectively overruled Miranda when it enacted the Omnibus Crime Control and Safe Streets Act of 1968. The ACLU submitted an amicus brief in support of rehearing in the Fourth Circuit, which argued that Miranda was a constitutional decision and is therefore binding on Congress (as well as the states). If the Court takes the case, it remains to be seen whether it will apply the same limits on congressional power in this context that it has so readily applied in others.

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