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The latest news from CIR
Oral argument set in NYC building superintendents' case After an unusually long delay in setting a date for oral argument in CIR's long-running school building superintendents' case, the Second Circuit Court of Appeals has finally set one: February 1, 2010. In this case CIR is challenging an instance of intergovernmental collaboration -- a joint project of the federal government and the New York City schools to discriminate against a class of superintendents based on their race and sex. On the first, the court will hear arguments and ask questions of lawyers for the United States, John Brennan and other school superintendents (represented by CIR), and two other sets of intervenors represented, respectively, by the NAACP Legal Defense Fund and the Women's Rights Project of the ACLU. At issue is the propriety of an agreement the United States and New York City made to give "retroactive seniority" to a group of minority superintendents. Even though the members of this group already had benefited from a ferocious program of race discrimination in their favor by the City, the joint US-NYC agreement expressly discriminates in their favor yet again. It also harms other minority, and white, superintendents who had been hired the old-fashioned way, by passing a race-blind civil service test. Given the importance of the case -- due to its potential to expand the Supreme Court's recent decision in Ricci v. DeStefano, the New Haven firefighters' case -- CIR General Counsel Michael Rosman will be traveling to New York to conduct the argument personally.
CIR brings Alabama state corrections officer's case before the Supreme Court December 10, 2009. Today CIR filed a petition for writ of certiorari in the United States Supreme Court on behalf of our client Timothy Pope, seeking review of the question of whether flawed judicial consent decrees from the distant past can be used to shield government agencies from liability for having violated constitutional rights. In 2002, Pope, a correctional officer working for the State of Alabama, was denied a promotion because he was white. Under the terms of a consent decree that a federal court had entered in a case in 1970, the state was required to favor black applicants. The federal district court hearing Pope's own lawsuit found this judicial order violated the equal protection clause of the Fourteenth Amendment and dissolved it. But it also held Pope was not entitled to damages, because the agency's discrimination was required by the court order in that other case. The court's logic? However misguided, outmoded, or downright illegal a given consent decree may be, it still gives government a "compelling interest" in discrimination -- and thus safe harbor from the commands of the Constitution. On appeal, the Eleventh Circuit Court of Appeals affirmed the decision of the district court. Numerous consent decrees, often dating from the heady judicial activist days of the 1970s, continue to mandate that states apply unconstitutional employment preferences. We think the Eleventh Circuit's view of their legal effect clearly runs counter to prior Supreme Court pronouncements and the holdings of other circuits. We are asking the Court to resolve the circuit split and broadly hold that a discredited and dissolved consent order from the days of polyester and paleoliberalism (or any other time, for that matter) should not shield a state from liability for violating the Constitution.
School custodians case poised for oral argument December 7, 2009. On August 3, 2009, CIR filed the final set of briefs in its mammoth case on behalf of New York City school custodian (school building superintendent) John Brennan. The next step is oral argument before a three-judge panel of the Second Circuit Court of Appeals. The case began some years ago, when the U.S. Justice Department sued the City of New York because there were not "enough" school building superintendents in its employ who were not white males. Despite the lack of evidence that this "imbalance" resulted from discrimination, the city quickly agreed to a settlement with the federal government under which temporary female and minority superintendents would get permanent status and retroactive seniority -- at the expense of white male custodians such as soon-to-be CIR client John Brennan. Represented by CIR, Brennan moved to make himself a party in the case in order to challenge the idea that race discrimination is a permissible response to mere numerical imbalances. We have hopes this case will go to the next level, becoming the vehicle by which the Supreme Court will fill in some significant blanks it left in its recent Ricci firefighters decision. Perhaps a measure of the importance of this case (or just its breadth and difficulty) is that the Second Circuit has been unusually slow in setting a date for oral argument. Every week we expect the order setting that date, and every week (so far) we've been disappointed. Never mind; whenever the court is ready, so are we.
Appellate argument in Michigan Civil Rights Initiative case November 17, 2009. A three-judge panel of the Sixth Circuit today heard oral argument in BAMN v. Granholm, the case that threatens the Michigan Civil Rights Initiative. Thanks to CIR, that initiative of Ward Connerly and Jennifer Gratz to ban race preferences by the government of Michigan got on the ballot in 2006, and thanks to the voters of Michigan it passed that November and became part of the Michigan Constitution. So -- that means no more "reverse" race discrimination by the state of Michigan (including its state universities, such as the big one in Ann Arbor), right? Not if the ACLU, a group called BAMN (short for the Malcolm X phrase "By Any Means Necessary"), liberal Harvard Law professor Laurence Tribe, and the blue-chip New York law firm Cravath, Swaine & Moore have their way. They (among many others) are the opponents of lone law school applicant Eric Russell, represented by CIR, and they're doing everything they can to get the new state constitutional amendment declared in violation of the United States Constitution. Yes, that's right: they want a provision banning race discrimination struck down as unconstitutional. CIR General Counsel
Family rights case set for battle in Idaho September 24, 2009. Federal District Judge B. Lynn Winmill today set a trial date in CIR's long-running case on behalf of the Muellers, a family whose five-week old daughter was unlawfully seized by police and state child protection officials in a Boise, Idaho, emergency room. Corissa Mueller had brought her daughter Taige to the ER with a slight fever. After discussing her treatment with an ER doctor, Mrs. Mueller elected to wait and see how Taige was doing before deciding whether to authorize a spinal tap. The doctor didn't like this decision (even though it's considered reasonable by eminent pediatricians), and he got social workers and the police involved. The police physically seized Taige from Mrs. Mueller (and held the latter in a room for an hour without letting her use the phone) and the doctor did his spinal tap -- which a few hours later came back negative for meningitis. Doctors now figured Taige had a cold. The social workers held onto Taige for another day, though, and also administered the baby unnecessary steroids--a treatment to which Mrs. Mueller would not have consented. And nobody bothered to phone father Eric Mueller (at home taking care of the couple's other child) and tell him what was in store for his daughter until it had been done. CIR sued on behalf of the Mueller family, and in February 2007, Judge Winmill found that social workers and the police detective who seized Taige violated the family's constitutional rights relating to who should make decisions about Taige's medical treatment. The judge reserved the main factual question of whether Taige was in imminent danger when seized for trial. Following an appeal by the police detective on a minor issue, today the judge set a date for that trial: June 7, 2010.
Trial set in California officials intimidation case August 18, 2009. Today federal Judge Stephen G. Larson set a trial date of March 16, 2010, in CIR's case on behalf of California grandmother Julie Waltz, whom state housing officials made the subject of an investigation solely because she expressed her objections to the placement in her neighborhood of a group home for emotionally troubled persons. The facility was put right next door to Waltz, and she worried (not without reason) that not just the emotionally disabled, but eventually sex offenders, too, would move in. She assumed she had a basic First Amendment right to join in protests of the placement, and she did so by means of signs in her own yard. In response, state officials investigated Waltz for "housing discrimination" against the disabled, and even accused her of it in the media. Unsurprisingly, after this the protests that had been ballooning against government decisions to place group homes in residential neighborhoods died off. Mission accomplished for the state housing officials? At CIR we hope not. We've sued the officials on Waltz's behalf under the First Amendment. In fact, we're suing them for damages in their personal capacities, which is the best way to hold them accountable for using intimidating investigations of citizens to squelch debate about favored government policies.
CIR's fall Docket Report covers recent developments in CIR's litigation, including three cases now at the Courts of Appeals. Any one of them could go the Supreme Court in the next few years. Read how CIR's strategic litigation could change the constitutional landscape for years to come.
July 31, 2009. Today CIR filed a brief in the U.S. Supreme Court in a lawsuit organized by former CIR board member Mike Carvin against the federal Public Company Accounting Oversight Board (PCAOB). The suit seeks the dissolution of this powerful agency on basic constitutional grounds, including the separation of powers. The PCAOB (nicknamed "Peekaboo") is all the rage in statist policy circles, for it has been designed both to have vast power over private enterprises (which it may even tax to fund its own budget) and to be shielded from accountability to officials elected by the people. In our brief, CIR takes issue with Peekaboo's further assertion that it need not even answer to the courts -- which it claims have no jurisdiction to hear such cases as the one now brought against it.
CIR in the news on Supreme Court firefighters decision June 30, 2009 -- In Ricci v. DeStefano, the Supreme Court ruled 5-4 that employers may not jettison the results of an otherwise fair promotion test solely because minority applicants score lower than non-minority applicants. The decision was a victory for New Haven firefighters, who challenged that city's decision to throw out the results of a civil service exam for fire department promotions because of political pressure from groups dissatisfied with minority performance on the test. CIR General Counsel Michael Rosman discussed the ruling in various newspaper articles and on television:
CIR's Rosman to speak at ACS convention CIR General Counsel Michael Rosman will speak at the American Constitution Society's 2009 National Convention on June 19, 2009 in Washington, DC. He will appear on a panel, "Race and the Law in the Wake of the 2008 Election" at 11:15 am. More information can be found at the ACS website: www.acslaw.org.
CIR files Supreme Court brief in New Haven firefighters case February 26, 2009 - CIR filed an amicus brief before the Supreme Court in a case brought by New Haven firefighters challenging a decision by city officials to jettison a hiring test due to political pressure from individuals and organizations advocating greater hiring of minority firefighters. CIR previously filed an amicus brief urging the Supreme Court and the Second Circuit to review lower court decisions in this case. At issue are so-called race neutral efforts undertaken for clearly racial motives. In this case, city officials claimed to be interested only in avoiding litigation even though evidence showed they were more specifically concerned to satisfy noisy interest groups trying to boost minority hiring. The case could have effects on facially race neutral efforts in other areas, including college admissions. CIR filed this latest brief on behalf of itself, the Center for Equal Opportunity and the American Civil Rights Institute.
Michigan civil rights initiative legal fight moves forward December 11, 2008 - U.S. District Court Judge David Lawson denied the ACLU's motion (made on behalf of the "Cantrell Plaintiffs") to amend or modify his March 2008 ruling upholding the right of Michigan citizens to amend the Michigan constitution to forbid the use of race in most state programs. The ACLU argued that Judge Lawson had misapplied prior Supreme Court precedent, including the Hunter/Seattle line of cases. Judge Lawson's decision means that the case now goes to the Sixth Circuit.
Victory in New York exam schools case December 10, 2008 - U.S. District Court Judge Dora L. Irizarry approved a stipulated settlement agreement that brings to successful conclusion CIR’s suit challenging the use of an Asian quota to New York City’s Specialized High School Institute. Pursuant to the settlement, the New York City Department of Education agreed to eliminate the use of race in awarding admission to its Specialized High School Institute and pay attorneys’ fees and damages to CIR client Stanley Ng. The Stipulation requires the defendants to notify CIR of any changes to its admissions criteria to the Institute and the court retains jurisdiction to enforce the terms of the agreement for a period of three years.
Last November, Ng sued to end an unconstitutional school policy prohibiting Asian middle school students from applying for an enrichment program on the specious grounds that there were already “too many” Asians in elite city high schools. Documents CIR obtained in pretrial discovery confirmed that, with slight variations in the ten educational regions of the city, DOE had applied explicitly racial admissions criteria for the Institute, by which it excluded Asian and white students from the program.
Nebraska votes to end racial preferences November 4, 2008 – Voters in Nebraska voted by a wide margin to end preferential treatment based on skin color or gender in public education, contracting and employment. Initiative 424 passed 58% to 42%. A similar measure in Colorado narrowly failed to pass, garnering 49% support.
The Nebraska Civil Rights Initiative is patterned after the Michigan Civil Rights Initiative, which voters of that state approved in 2006. CIR client Eric Russell’s timely intervention in December of that year derailed legal efforts by opponents designed to delay implementation of the new amendment. CIR continues to represent Russell in the ongoing litigation, one of the most strategically important civil rights cases pending in the country. Last spring, federal district judge David Lawson dismissed the suit, concluding that the amendment did not violate the federal Constitution. That decision has been appealed to the Sixth Circuit.
CIR files appeals in landmark NYC employment case October 20, 2008 - CIR filed appeals in United States v. New York City Board of Education and several related cases. The cases have been called "notorious" by Sen. Kennedy. The trial judge termed them a "veritable tour de force of every aspect of affirmative action law in the employment arena....a legal juggernaut [for which]...many of the issues...have yet to be passed on the Supreme Court."
The cases challenge the controversial federal tactic of settling employment discrimination charges with a consent decree that strips employees of relative seniority without allowing them an opportunity to contest the original allegations of discrimination. Last spring, U.S. District Judge Frederic Block agreed with CIR that many of the minority and female building superintendents who were slated to get increased seniority were not victims of the discrimination alleged in the case.
The next stop for CIR is the Court of Appeals for the Second Circuit where CIR will argue that mere numerical disparities do not constitute adequate proof of discrimination and that a consent decree of this kind must be limited to providing relief to actual victims of alleged discrimination.
Free speech case against housing officials proceeds September 29, 2008 - U.S. District Court Judge Stephen G. Larson denied the defendant’s motion to dismiss CIR’s claim for injunctive relief against California housing officials who used a lengthy housing discrimination investigation to silence CIR client Julie Waltz in her efforts to protest the placement of former sex offenders in adult living facilities located in residential neighborhoods. The case now proceeds to discovery.
State housing officials decided to make an example of Mrs. Waltz by launching a yearlong investigation of her for state housing discrimination, utilizing the news media to portray her as a law breaker and discriminator. CIR’s suit seeks to enjoin the use of such investigations and to protect Waltz’s exercise of her rights of free speech under the First Amendment.
CIR fights for fair child protection September 15, 2008 - CIR General Counsel Michael Rosman travelled to Idaho to urge a panel of Ninth Circuit judges to hold state officials liable in their personal capacities for the arbitrary seizure of minor children from perfectly competent parents.
CIR is representing Idaho residents Eric and Corissa Mueller who had their five-week-old daughter removed from their custody during a late-night visit to the emergency room in 2003 because an emergency room physician interpreted the mother’s questions over the proper treatment of a high fever as child endangerment.
The Ninth Circuit currently is reviewing an appeal from a police officer who was found liable for failing to inform the father (who was at home with the couple’s other children) of the impending decision by state officials to remove custody. After the question of the officer’s immunity is decided, the case will return to the District Court.
The Mueller's case could turn out to be one of the decade’s most important family law cases. It promises to strengthen the fundamental constitutional right of families to make important medical decisions on their own.
April 7, 2008 - The National Association of Scholars website has posted an article authored by CIR president Terence Pell about recent CIR efforts to force three Michigan universities to disclose data showing the harmful effects of racial preference on the academic performance of minority students. Preliminary data (summarized in declarations made by expert witness Richard Sander) suggests that University of Michigan expert testimony in Grutter v. Bollinger may have been faulty. CIR requested the data pursuant to court ordered discovery in litigation brought by several advocacy groups challenging Michigan's new amendment barring the use of racial preferences (BAMN v. Granholm).
CIR sues to end abusive housing discrimination investigations April 1, 2008 - CIR filed suit against officials of the California Department of Fair Employment and Housing charging that they willfully violated the First Amendment rights of California citizen Julie Waltz. Despite clear evidence that Waltz had done nothing more than post signs in her yard critical of state housing policies regarding the placement of sex offenders in residental neighborhoods, officials allowed a housing discrimination investigation to go on for most of a year. During that time, officials told Waltz that her speech violated state fair housing laws, requested that she remove the signs, threatened her with prosecution and used the public media to characterize her as a discriminator and a violator of fair housing laws.
Judge Lawson upholds Michigan Prop. 2 March 18, 2008 - U.S. District Court Judge David Lawson ruled that Michigan’s Prop. 2 does not violate the U.S. Constitution.
Lawson’s decision was a victory for CIR client Eric Russell who intervened in a legal challenge brought by a Michigan advocacy organization called “BAMN.” BAMN, later joined by the ACLU and the NAACP Legal Defense Fund, Inc., claimed that it was unconstitutional to prohibit the use of racial preferences across the board.
Russell contended that an amendment that prohibited racial discrimination across the board cannot violate the U.S. Constitution. Earlier in the case, Russell successfully petitioned the Sixth Circuit to reinstate Prop. 2 after Judge Lawson had enjoined its enforcement against Michigan colleges for six months.
February 22, 2008 - In a hearing to consider CIR's suit to rid Mark Twain Intermediate school of illegal racial quotas in admissions, U.S. District Judge Jack Weinstein terminated the 1974 desegregation order that New York officials believed mandated the use of racial quotas at the prestigious magnet school. School officials must now purge the admission system of the unconstitutional consideration of race.
NYC files in support of CIR effort to end school quotas February 12, 2008 - The New York City Department of Education today joined CIR in asking Federal District Court Judge Jack Weinstein to terminate the 1974 desegregation decree that imposes racial quotas on admissions to Mark Twain Intermediate School. CIR challenged the quotas in a lawsuit filed January 14, 2008.
In its motion, the Department asked the court to immediately order the end of race based admissions requirements to District 21 gifted and talented programs for the 2008-2009 school year, including those at Mark Twain.
Co-counsel Cooper to urge end to Prop. 2 litigation February 6, 2008 - CIR co-counsel Charles J. Cooper urged U.S. Federal District Court Judge David Lawson to reject all pending legal challenges to Prop. 2 as a matter of law. Together with CIR, Cooper is representing Eric Russell, a Michigan resident who moved to intervene in the case in December 2006.
Russell contends that the U.S. Constitution does not prevent the citizens of Michigan from amending their constitution to forbid the use of racial preferences in state programs such as admission to the state universities.
Separately, Cooper and CIR are representing Jennifer Gratz in a motion to intervene in the litigation as an interested party. Gratz seeks to ensure that her interests remain adequately represented in the event that the Cantrell Plaintiffs succeed in dismissing Russell from the case, either in a pending motion (see update below) or in future such attempts.
CIR sues NYC to end magnet school quota January 14, 2008 - CIR filed suit to end a racial quota at prestigious Mark Twain Intermediate School, a New York City magnet school. The relic of a 30-plus-year-old desegregation decree, the 60% white - 40% minority quota at the school now limits the number of minority students who can attend the school. Due to populations shifts, the district now must lower entrance examination scores for white applicants in order to meet the quota.
CIR is representing Anjan Rau and Kanchan Katapadi, Asian Indian parents of three children. Their eldest child, Nikita Rau, was denied admission to Mark Twain last year. White students were admitted that year with scores as low as 77. Nikita and other minority students were required to score 84.4 or better to be admitted.
After months of silence, New York officials announced shortly after the case was filed that they would move to lift the 1974 desegregation order. We await the motion.
CIR sues to stop NYC schools race discrimination November 19, 2007 - The Center for Individual Rights filed a class action lawsuit against the New York City Department of Education challenging the Department’s policy of excluding Asian American and white students from a test preparation course because of their race. CIR is representing three Chinese American parents in Districts 20 and 21 (Brooklyn) whose children were denied admission to the City’s “Specialized High School Institute,” a fifteen-month course designed to prepare students to take the admissions exam for such elite New York schools as Manhattan’s Stuyvesant High School, Brooklyn Technical High School, and the Bronx High School of Science.
Favorable ruling in family rights case February 25, 2007 - Federal District Court Judge B. Lynn Winmill issued a 62 page ruling finding that city and state officials in Boise, Idaho violated the constitutional rights of members of the Mueller family when they assumed custody of 5 week-old Taige Mueller in 2002 in order to forcibly administer a spinal tap. The ruling points to numerous shortcomings in city and state procedures and finds that state officials violated Eric Mueller's constitutional right to be notified both before and after the state assumed custody of his infant daughter. Judge Winmill's ruling deferred certain issues for trial, including the question of whether Taige was in imminent danger when officials assumed custody.
Stanford study quantifies effect of law school preferences November 5, 2004 - A Stanford Law Review article by Prof. Richard H. Sander presents a devastating critique of law school preferences. Sander shows that the use of double standards in the top tier law schools has a cascading effect that forces lower tier law schools to also use preferences. As a result, many minority law students have difficulty competing academically. According to Sander,
"At American law schools that use large racial preferences, half of all black students end up in the bottom tenth of their first-year class...[T]his performance gap has nothing to do with race per se; whites who attend law schools where their credentials are far below most of their peers have pretty much the same types of troubles. The performance gap is a function of preferences."
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revised: January 8, 2010
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