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.

Facebook Facing Lawsuit

If he had an actual Facebook account, Facebook owner Mark Zuckerberg may soon have had to update his status to "sued." According to the NY Times, Zuckerberg has been sued for allegedly pilfering ConnectU's business model and code for a similar online profile student directory service.

Although the case was thrown out by a MA federal judge, due to a lack of evidence, the case is interesting and fertile ground for intellectual property law. If it is in fact true that Zuckerberg did steal the code and idea from ConnectU, it is still questionable about how much Zuckerberg actually owes ConnectU owners. While it is true that Zuckerberg would not have had such an easy time starting up Facebook (if he did in fact steal the code), Zuckerberg has also had to work very hard to get Facebook the publicity and usership that it has currently.

How much of his current success, then would he owe to ConnectU and how much should he rightfully take credit for?

Socio-economic Factors Fail in Creating a "Diverse" Student Body

A NY Times article reports that high schools are having trouble creating diverse student bodies using socioeconomic factors rather than race. The article reports when schools in San Francisco began considering other factors besides race to create a diverse student body, these plans did not work. While the premise of race correlating with income is fertile ground for creating a diverse student body in theory, in practice the experience of using such criteria has proved quite difficult.


What does this mean for the use of race in creating a diverse student body? It at the very least does not entirely foreclose the option of utilizing factors that favor certain races in designing a racially diverse student body. Justice Kennedy's opinion in the recent Seattle schools case therefore is very prescient in emphasizing the fact that in some cases race may actually be a useful means of selecting and rejecting certain applicants for high school admission. (Admissions to undergraduate and graduate education remain an entirely separate issue addressed in two other affirmative action cases).

The findings by the San Francisco schools also raise interesting questions about what exactly diversity means. What precisely constitutes a "diverse" student body? What's wrong with having an entirely black student body? For example, a high school student body could be composed entirely of black students. However, if one digs deeper, and gets to know each individual student, we find that some are children of wealthy doctors, lawyers or business men. Some come from housing projects nearby. Others are immigrants who recently came from Sudan as refugees and are learning English as a second language. Some of these students aspire to be artists, NBA basketball players, president, or the U.N. Secretary General. Would not someone say that this is a diverse group of students who could learn from each other's different experiences, talents, and backgrounds?

There are real and substantive differences between each individual student in the scenario that could provide educational benefits. Are the educational benefits even greater when these students can visually see differences in skin color? An interesting question that courts may have to confront one day (perhaps rather soon) in the future.

Race in Schools: A Move Beyond Integration to Diversity

Many journalists have categorized the recent decision regarding race-based assignments in high schools as a win for conservatives. After all the decision, Parents Involved in Community Schools v. Seattle School District No. 1, seems to turn back the clock on progress that has been made regarding race and race relations in the United States.

Yet summing up the decision in so many words is not that simple. The 185 page decision is quite nuanced. The conservative plurality authored by CJ Roberts, and joined by Scalia, Thomas, Alito and Kennedy is quite careful in not striking down any race based means of achieving the high school's end goal of creating a diverse student body, but only goes so far as to say that purely race based means of doing so are unconstitutional. The opinion does not overturn any past precedent, but merely serves to clarify it. Kennedy's concurrence serves to emphasize this distinction.

He says:

"This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated societythat ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand."

Both liberals and conservatives should agree that this crude classification of children solely on the basis of race is unconstitutional. It goes against the very meaning of the Equal Protection Clause. It would also go against the very individualized method of review that the Court in Grutter approved. The court made it explicit in the two University of Michigan affirmative action cases that the reason for approving one system of review and striking down another was the more individualized method of review where race was not equated with diversity, but one of many factors that could contribute to the meaning of diversity. Justice Kennedy should be applauded for upholding and making special note of this precedent, even though he did not join in the majority's opinion in Grutter.

The decision conforms to what much of Bakke, Grutter, and Gratz have told us over the past 30 years. The days of pure race based integration measures for simply remedying for the effects of past discrimination are over. We have moved beyond integration for the sole purposes of integration. Integration serves a new goal now. That new goal is diversity. The goal, it appears, serves a dual purpose: 1) increasing education and tolerance among members of society and 2) remedying for the effects of past discrimination.

While remedying for the effects of past discrimination may not be necessary anymore at some point (as O'Connor prophetically said in Grutter that affirmative action measures would be expected to end in 25 years), it seems that as long as there is a society that values education and tolerance, race will be an ever present factor in discussions about diversity and society will never truly be colorblind.

Student Free Speech Decision: Yields a Confusing Test

Yesterday, the Court handed down its opinion in one of two blockbuster cases remaining to be decided: Morse v. Frederick. The case decides whether an Alaska school can limit student free speech regarding illegal drugs. The student, Joseph Frederick ,was suspended after displaying a sign reading "Bong Hits 4 Jesus" and he subsequently sued the school for violating his First Amendment rights.

The decision seems to chip away at a clear and applicable test for restricting First Amendment protections of freedom of speech. Precedent has usually cited safety as a primary concern for restricting freedom of speech and the Court's decision in Morse expands the definition of safety slightly too much.

CJ Roberts writes the opinion for a highly fractured majority: Scalia joins with Roberts, Alito and Kennedy write concurring opinions, and Breyer joins in the outcome of the case, but for a different reason than the other four justices. A common thread among all five justices, however, is that the school should win. Save Justice Breyer, the Court found that the student banner which was displayed at a parade reading "Bong Hits 4 Jesus" was speech that "materially and substantially disrupted the work and discipline of the school." How? By encouraging illegal drug use which has become an enormous problem among adolescents. Therefore restricting this speech will lower peer pressure to use illegal drugs such as the one in this case, marijuana.

The connection between the banner and increased drug usage is tenuous at best. The Court provides no evidence showing that the school experienced or would experienced increased numbers of students using drugs after being exposed to the sign. Moreover, the strongest stimulus of peer pressure, which would cause students to use illegal drugs, is not removed by the sign and subsequent speech being banned by the school. The ban shows disapproval, but would adolescent teens ever really listen to an adult's simple disapproval?

Stevens in his dissent gets it right. He writes:

The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner, see App. 25—a viewpoint, incidentally, that Frederick has disavowed, see id., at 28. Unlike our recent decision in Tennessee Secondary School Athletic Assn. v. Brentwood Academy, 551 U. S. (2007) (slip op., at 3), see also ante, at 3 (ALITO, J., concurring), the Court’s holding in this case strikes at "the heart of the First Amendment" because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U. S. 397, 414 (1989).

In addition, he cites Tinker again, placing emphasis upon the fact that "Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance." CJ Roberts draws too many lines and has to make too many assumptions in showing the connection between Frederick's sign and an increase in student drug use. There is no "significant fear of disruption." At least none in the opinion was shown or advocated by the school itself.

One other danger of "viewpoint discrimination," as Justice Stevens calls it, would be that moral judgments either on the morality of gay marriage, stem cell research, or abortion would become at least conceivably regulated under the school's policy of anything that "materially or substantially would disrupt the work or discipline of the school." Resolving teenage pregnancy through abortion may very well be an increasing problem for America, but does the school have a right to limit speech which may advocate for a pro-choice position? The test the Court lays out in Morse would appear to affirm a school's decision to limit that kind of speech.

Justice Breyer also points out an interesting situation:

If, for example, Frederick’s banner had read"LEGALIZE BONG HiTS," he might be thought to receive protection from the majority’s rule, which goes to speech "encouraging illegal drug use." Ante, at 2 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.

Legal principles must treat like instances alike. Those principles do not permit treating "drug use" separately without a satisfying explanation of why drug use is sui generis. To say that illegal drug use is harmful to students, while surely true, does not itself constitute a satisfying explanation because there are many such harms. During a real war, one less metaphorical than the war on drugs, the Court declined an opportunity to draw narrow subject-matter-based lines. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (holding students cannot be compelled to recite the Pledge of Allegiance during World War II).

Indeed, the Court does not consider the chilling effects that their decision creates on possibly educative speech which will broaden student's horizons and force them to make educated and informed choices (whether on the use of illegal drugs or support for an unpopular war)--something which would substantially aid the work and discipline of the school, rather than disrupt.

The Court authors a problematic decision in Morse. It will likely see this case revisited once more so that they can fashion a more coherent approach to free speech in schools.