Circuit Court Ruling Affirms FAIR Decision

A valiant effort by Yale Law School to challenge the Solomon Amendment once again fails in the federal courts. The 2nd Circuit of the Court of Appeals affirmed the jurisprudence laid out in the Rumsfeld v. FAIR decision handed down by the USSC in 2006. Circuit Judge Pooler wrote the opinion for the case which can be found here.

The court rejected the law school's argument saying that its academic freedom was violated by a government policy which would rescind federal funding of the law school if it did not give military recruiters the same access as other job recruiters.

Read more about the case here.

Response to America's View of an Increasingly Conservative USSC

A recent Washington Post article has found that an increasing percentage of Americans view the USSC as "too conservative." While about half of the respondents in a Washington Post-ABC News poll view the Court as issuing "balanced" decisions (perhaps as many ideologically conservative decisions as liberal decisions), there was a jump in the percentage that felt the Court was "too conservative": 31 percent, up from 19 percent in 2005. Those who felt that the Court issued "balanced" decisions also decline from 55 percent to 47 percent in the last two years since the nominations of CJ Roberts and Justice Alito.

The poll is interesting in trying to gauge and analyze how the general American populus views the Court. Given the fact that most of the decisions regarding abortion, race, and free speech this term have been quite complicated it seems that the majority of the Americans surveyed in this poll have oversimplified the issues and the opinions of the newly appointed justices currently sitting on the Court.

While the bottom line of these decisions (regarding abortion, race, and free speech) was against what one normally would view as a liberal position on these issues, the decisions themselves and how the justices reached their respective conclusions matters in how future justices and judges will interpret their decisions. Admittedly, the free speech test applied in Morse was slightly confusing and rather vague in its application, but those decisions regarding abortion and race all
are very careful in how they talk about restricting the rights of abortion and also the use of race in high school admissions.

Perhaps most of the sentiment among Americans about the shift in the High Court comes from what they read and listen to on a daily basis: the media. The media works under time constraints and caters to a public that does not necessarily have the time to digest complicated legal analysis or jargon. Perhaps the bottom line of these decisions is the only real thing that is communicated by the media to the public and having seen only the bottom line, the public perception of the Court and its justices' thinking is not fully understood.

Affirmative Action & Freedom of Expression

Two blockbuster cases await decision as the onset of June approaches and the 2006 term of the Supreme Court comes to a close.

The first case deals with the ability of public schools in the state of Washington to use race as a factor for assigning seats in high school assignments. Certain public schools in the city of Seattle are oversubscribed by public high school students and as such high schools use certain criteria to determine which students to accept. Race is the last factor among three others considered in the selection process.

Justices took great pains during oral argument, however, to make sure that they communicated the fact that the "integration tie breaker" used by the Seattle school districts is different from the affirmative action plan seen in the Grutter University of Michigan Law School case from 2003.

Because of this distancing from previous precedent upholding the use of race, On the Docket believes that USSC will strike down the integration tie breaker.

The second case deals with freedom of expression. Namely, the phrase, "Bong Hits 4 Jesus," which was displayed during a public school parade in Anchorage, Alaska. During oral argument justices were quite concerned with the ability of school officials to ban this type of free speech (one which did not harm others) as too limiting a regulation in violation of the First Amendment. The justices seemed to imply that if they ruled in favor of the school, school administrators would then be free to regulate views of school teachers, books, and other learning materials that school adminstrators may perhaps not agree with.

It is therefore our prediction that the Justices will rule in favor of the students.