T H E   U . S .   S U P R E M E   C O U R T   2 0 0 6 - 2 0 0 7 : 
Previous cases of interest to "About Town"...
about its members.

Sixteen-year-old Lewis Mills High School senior Avery Doninger poses with her mother, Lauren Doninger outside the law offices of attorney Jon Schoenhorn (TIA ANN CHAPMAN / July 16, 2007)

So far this session...pretty balanced on big issues (three to the left, three to the right)...and one in the ether, just waiting to make its way thru the process!
  1. FREE SPEECH:  "Bong 4 Jesus" Court ruling resonates back home in CT...
  2. Guantanamo re-hearing;
  3. Faith-based education funding;
  4. Patent infringement (Microsoft v. AT&T). 
  5. School diversity, an issue this session:Jefferson County - Louisville Downtown Pedestrian Mall shown above - decisionWhat relation does the latest decision (Seattle and Jefferson County) have to CT's  Sheff v. O'Neill?  Is the 1989 case in State Court affected?
  6. Global warming (melting glacier) cases of interest; decisions:  EPA v. Mass. and Duke Energy 2006-2007 term.
  7. Conduct of spectators. 

Follow up...
INTERNET DISPUTE: Student's Free Speech Case May Lead To Legislation
The Hartford Courant
February 1, 2009

In his ruling on a pioneering Internet free speech case last month, U.S. District Judge Mark R. Kravitz offered something of a plea to higher courts: Revisit the boundaries of free speech for students.  Kravitz was siding with Burlington school administrators accused of violating the First Amendment rights of a student they disciplined for a blog post she wrote off school grounds. And he offered an argument for why, in the Internet age, the old boundaries of what schools can regulate might not apply.

"Off-campus speech can become on-campus speech with the click of a mouse," he wrote.

Now, state lawmakers are staking out a different side in the debate. They are considering a law that would prohibit schools from punishing students for any non-threatening electronic correspondence transmitted outside school facilities and not on school equipment.

"There shouldn't have to be a bill, but I think we should put something in there to clarify that [the student] does have rights," said state Sen. Gary LeBeau, a former civics teacher who proposed the bill.

The proposed change in state law wouldn't directly affect the federal case of Avery Doninger, the now-graduated Lewis H. Mills High School student at the center of the case before Kravitz.  But it would put the state's weight firmly on her side in a dispute that eventually may reach the U.S. Supreme Court, a contest that raises questions about the nature of students' right to expression, the boundaries of what schools can regulate and whether the Internet can fundamentally change those things.

"This is really the sharp cutting edge of disputes about the extent to which young people should be permitted to have freedom of speech and the extent to which schools can intervene in speech between students out of school, which is a very grave question," said Stephen Nevas, executive director of the Law & Media Program at Yale Law School.

"Particularly when the Internet has become a dominant mode of communication."

Outdated Guidelines?

Thirty years ago, the U.S. 2nd Circuit Court of Appeals offered a clear stance on what types of student speech schools could regulate.

"The arm of [school] authority does not reach beyond the schoolhouse gate," the court stated in the 1979 ruling against school officials who suspended students for publishing a vulgar newspaper that they distributed off campus.

Subsequent cases have softened that distinction, but in his ruling in Doninger's case, Kravitz called on the courts to go even further. Students can now reach hundreds of people with a mass e-mail, or post items on the Internet that can be read instantly by students, teachers and administrators, he wrote.

"We are not living in the same world that existed in 1979," Kravitz wrote.

The significance of Doninger's case and other student Internet speech cases elsewhere in the country centers on a thorny question: Does the Internet fundamentally change how people communicate, making previous boundaries between on- and off-campus speech outdated, or does it simply amplify what they say?  To LeBeau, the Internet changes little about what he considers a basic First Amendment issue. The suggestion that schools should be able to discipline students for what they say out of school is wrong, he said.

"This is like saying you can't write on a piece of paper and distribute that piece of paper outside the school," said LeBeau, a Democrat from East Hartford. "I'm really disappointed in the courts."

State Rep. Michael Lawlor, co-chairman of the judiciary committee, said the topic is worth considering legislatively. Although schools can exert control over things published using taxpayer money or on school grounds, Lawlor said it's quite another thing when students use the Internet outside of school to publish their own opinions.

"This is going to come up a lot in the future, given the growth of journalism or pseudojournalism on the Internet," said Lawlor, a Democrat from East Haven. "There's clear free speech issues there."

Blurring Lines

But Tom Hutton, senior staff attorney for the National School Boards Association, said the line between on- and off-campus speech is not so clear-cut.

"The premise that in the 21st century, that there's this magic line, that doesn't work," he said.

Instead, Hutton said, the key should be how what happens off campus affects the school.  Take cyberbullying, a concern of many parents who clamor for schools to do more to stop it. It's not life-threatening and may happen off school grounds, but it still hurts children and can affect their performance in school, Hutton said.  And he said it's different from other bullying: Evidence of what was said remains visible to an unlimited audience on the Internet, even once the "incident" ends.

"I don't think that there are schools out there who view their job as being the Internet police," Hutton said. "The point is, at what point does it have an impact on campus that warrants some kind of action?"

Thomas R. Gerarde, who represents the school officials in the Doninger case, said the Internet is unlike old methods of mass communication, like newspapers, lawn signs or pamphlets, because it allows students to access the entire student body to an extent that would not have been possible before.

"That essentially duplicates a scenario where a student is standing in the audience on the stage and talking to a full audience of the student body because he or she can reach every one of those students, even though he or she is off campus," he said.

Doninger's attorney, Jon L. Schoenhorn, takes a different view. Blogs can only be read if people access them, and he said most bloggers could only dream of having a mass audience. Seeing the Internet's potential reach as a fundamental change in communication is a misunderstanding of the technology, he said.

"People, including lawyers of a certain age, are afraid of the Internet. They see it as some kind of all-encompassing, all-powerful sea change in communication," he said. "It's not. It's just that it's more convenient. It's a bigger soapbox."

Schools long have struggled with how to address things students do off campus, ranging from administrators finding a picture of a student doing something they shouldn't off campus to an online threat, Hutton said. 
Some leeway for schools has been clearly established, such as a U.S. Supreme Court ruling that allows schools to require drug tests for student athletes.  But increasingly, schools find themselves in unclear territory when it comes to the Internet.

In a case now in federal court, a former high school student in Florida named Katherine Evans created a Facebook group from her home computer that called her teacher "the worst teacher I've ever met!" and offered other students a place on the Web page to "express your feelings of hatred" toward her.

Evans was suspended for three days and removed from advanced placement classes for "Cyber Bullying harassment towards a staff member" and "disruptive behavior," according to court documents filed on Evans' behalf. Now in college, Evans sued the principal in December, alleging that he violated her First Amendment rights.

Hutton advises school officials to, among other things, consider alternative responses, such as talking to a student's parents instead of issuing a suspension.

"One of the things that districts struggle with is because this is all new, there may be some areas where the reality is school districts need to have thicker skin about some of the stuff that's not disruptive, it's not a threat," he said.

Weighing Threats

That was the upshot of a ruling in another Internet student speech case now in the federal court system.

In 2005, Justin Layshock, a high school student in Pennsylvania, used his grandmother's computer to create a fake MySpace profile of his high school principal, meant as a parody. Other people made copycat profiles, and students accessed them at school, in some cases disrupting class.  School officials gave Layshock a 10-day out-of-school suspension, placed him in an alternative education program for the rest of the school year and barred him from graduation.

U.S. District Judge Terrence F. McVerry ruled in 2007 that school administrators violated Layshock's First Amendment rights by suspending him. He wrote that there was no evidence that the MySpace profile was disruptive enough for the school to crack down on it, and that the school had not shown it had the authority to punish Layshock for what he did off school grounds.

"The mere fact that the internet may be accessed at school does not authorize school officials to become censors of the world-wide web," McVerry wrote. "Public schools are vital institutions, but their reach is not unlimited."

By contrast, Kravitz and judges in the U.S. 2nd Circuit Court of Appeals, which heard and denied a request by Doninger for an injunction, argued that school administrators had not violated Doninger's First Amendment rights.  Doninger was barred from serving on the student council because she wrote a blog post calling administrators "douchebags" and urging people to call or write the superintendent to complain about changes to a school event and "piss her off more."

Kravitz and the 2nd Circuit judges offered different reasoning, but agreed that school officials' actions were appropriate. Among the reasons they cited: Doninger was barred from an extracurricular activity, not suspended from school; the school could punish vulgar off-campus speech if it posed a reasonably foreseeable risk of coming onto school property; and Doninger's blog entry was vulgar, misleading — which Doninger disputes — and created the risk of "substantial disruption" at school.

Despite the different perspectives, McVerry and Kravitz agreed that student rights in such cases have yet to be clearly established. In both cases, the judges granted the school administrators qualified immunity, which shields public officials from lawsuits for damages unless they violate clearly established rights that a reasonable official would have known.


It's not just the Internet that has changed since 1979.

A generation of school shootings has put school officials on edge, putting greater emphasis on security, leading to calls for rethinking student privacy limits and placing a greater emphasis on finding warning signs before trouble occurs.  Gerarde said he could imagine a case in the future in which a school administration would be held liable for things that happened off campus because they should have been aware of them, based on e-mails they received. That, he said, argues for more latitude.

"It does seem like the courts know that the schools have a very difficult job, and they are supporting them," he said.

Schoenhorn said he sees a road to censorship.

"In my view, this is a dangerous approach in a free society to suggest that because communication is easier, we need more censorship and more restriction, rather than more openness," he said.

Appeals Court Rules Against Burlington Student
By ARIELLE LEVIN BECKER | Courant Staff Writer
May 30, 2008

Ruling in a case that addresses broad questions of the boundaries of free speech in the Internet age, a federal appeals court on Thursday effectively ended a Burlington student's effort to serve as a class officer and speak at graduation.

The ruling by the U.S. 2nd Circuit Court of Appeals in New York only addressed a preliminary issue in the case of Avery Doninger, a senior at Lewis S. Mills High School, who has argued that school district administrators violated her First Amendment rights by disciplining her for a blog post she wrote off school grounds.

But the court's ruling weighed in on a hotly contested and evolving area of the law, freedom of expression on the Internet. The three-judge panel stopped short of declaring how far schools can go in regulating offensive Internet speech made off campus, but stated that the school did not violate the Constitution in disciplining Doninger because her blog post "created a foreseeable risk of substantial disruption" at the school.

Thursday's ruling addressed a request by Doninger's attorney for an injunction to allow Doninger to serve as class secretary, which she was barred from doing because of the blog post. A federal district court judge rejected the request last year, finding that Doninger had not proven a substantial likelihood of challenging the constitutionality of her punishment. The appeals court agreed.

Thomas R. Gerarde, an attorney for defendants Paula Schwartz, the former Region 10 superintendent, and Mills Principal Karissa Niehoff, said the rulings by both courts "exonerated" the school district administrators.

"It's a very, very decided victory for Region 10. There's no other way to look at this," he said.

Jon L. Schoenhorn, Doninger's attorney, said the ruling could "emasculate the First Amendment rights of students."

"If this [blog post] was potentially disruptive, then they might as well empty out half of the schools of not just Connecticut but probably in this country," he said.

Schoenhorn noted that the rulings were based on a limited record and predicted that the courts would rule differently once the full case is heard in a trial.

A disappointed Lauren Doninger, Avery's mother, said she and her daughter had always planned to go to trial for reasons beyond the student government and graduation.

"We filed for an injunction because we really hoped to somehow hold on to part of this senior year experience for Avery," she said. "That's not going to happen, but that doesn't change that we need to move forward to trial. We need to really explore student speech rights at the judicial level in the age of the Internet."

The case originated in a dispute last spring about the Burlington school's Jamfest, a battle of the bands that Doninger helped coordinate. Frustrated that it was not going ahead as planned, Doninger wrote on her livejournal.com Weblog that "Jamfest is canceled due to the douchebags in central office." She encouraged others to write or call Schwartz "to piss her off more."

Jamfest wasn't actually canceled, and was later rescheduled. Administrators found the blog entry about two weeks after Doninger wrote it, and Niehoff told Doninger to apologize to Schwartz, show her mother the post and stop seeking re-election as class secretary.

Doninger agreed to the first two, but refused to withdraw her candidacy. Though Doninger was not allowed to run, enough students wrote in her name that she won. She was barred from serving.

The appeals court based much of its analysis on the 2nd Circuit case Wisniewski v. Board of Education of the Weedsport Central School District in New York, in which a student was suspended after creating an instant-messaging icon that suggested his teacher should be shot. The court upheld the suspension last year, saying it was reasonable to expect the icon would come to the attention of school authorities and could create a risk of substantial disruption to the school environment.

In Doninger's case, the court wrote, the blog post was designed to reach the school campus and generated student response, contained misleading information and could potentially disrupt efforts to resolve the Jamfest controversy.

The disruption the blog post caused, the court wrote, included students getting riled and administrators receiving phone calls and e-mails that made them miss or come late to school-related activities.

Even so, the ruling said, the relevant issue was not whether disruption occurred but whether school officials "might reasonably portend disruption."

Schoenhorn said he was concerned with the application of the Wisniewski case, which involved a threat to shoot a teacher, to Doninger's writing.

"They appear to equate words with bullets," he said. "And that is a scary prospect to me."

The court also emphasized that Doninger's discipline barred her from an extracurricular activity, and that the blog post was inconsistent with the school's policy that student government representatives have a record of good citizenship.

The case did not allow the court to consider "whether a different, more serious consequence than disqualification from student office would raise constitutional concerns," the ruling stated.

Free Speech Suit Filed; Student's Blog Entry At Issue
By DANIEL P. JONES And FULVIO CATIVO | Courant Staff Writers
July 17, 2007

A Lewis S. Mills High School student who was barred from running for class office after she called administrators a derogatory term on an Internet blog is accusing top school officials of violating her free speech rights.

Avery Doninger, a senior at the school in Burlington this fall, was removed as class secretary in the controversy last May. She is asking a state judge to order the school superintendent and the principal to reinstate her as secretary of the Class of 2008 and allow her to run for re-election in September.

Lauren Doninger of Burlington, the 16-year-old student's mother, filed a lawsuit Monday on her daughter's behalf in Superior Court in New Britain.  The case highlights the tension between a school's need to maintain discipline and the rights of students to free expression.

It comes in the wake of a landmark U.S. Supreme Court ruling last month concerning an Alaska student who hung a banner that said "Bong Hits 4 Jesus" during a school-related rally. The 5-4 decision put tighter limits on students' free speech. The justices ruled against that teenager because the banner's message could be interpreted as promoting drug use.

In the Lewis Mills student's case, according to Doninger's lawyer, Jon L. Schoenhorn, the student had a right to express her opinion in a public forum outside of school-sponsored activities. He cited a ruling from the U.S. 2nd Circuit Court of Appeals, which has jurisdiction over federal appeals in Connecticut, New York and Vermont, that prevented school administrators from punishing students for expression that took place off school grounds.

The Doningers say Principal Karissa Niehoff and Region 10 Superintendent Paula Schwartz violated Avery Doninger's constitutional right to free speech when the two officials punished her for what she wrote April 24 in a blog entry on her home computer, complaining that a battle of the bands-type jam session at the school had been canceled.

Doninger referred to school administrators as "douchbags" (sic) when she posted the entry on livejournal.com, a virtual community where users can write web logs, diaries or journals.

Although the Doningers say Avery was wrong to use that word and the girl has apologized for it, they accuse school officials of overreacting.

"The school had no business reaching into our home to decide how she should be disciplined," Lauren Doninger, an addiction studies and psychology professor at Gateway Community College in New Haven, said during a press conference Monday in Hartford at Schoenhorn's office.

Schwartz is out of the country and could not be reached for comment. Niehoff also could not be reached for comment. Other school officials did not return calls for comment.

Niehoff told WVIT-TV in May that school leadership positions are a privilege, not a right.

"When kids are in a position of privilege, there are certain standards of behavior we expect them to uphold," she told Channel 30. "Our position stands for respect. We're just hoping kids appreciate the seriousness of any communication over the Internet."

Avery Doninger had been elected Class of 2008 secretary in her freshman, sophomore and junior years. She said she aspires to become a student activities director at a preparatory school or college.

The girl, who will be 17 next month and is working at a Subway sandwich shop this summer, said she works hard at her studies and had no previous problems with school administrators.

On April 24, according to the lawsuit, school officials told Doninger and the other student council officers that a "Jamfest" scheduled for April 28 could not be held in the school auditorium because there was not a staff member available to run new equipment. The event is an annual battle of the bands organized by the student council in which local musicians perform for the community, according to the complaint.

Another student council member sent an electronic mail message that day to high school parents and students, encouraging them to call the school board for Region 10, which covers Harwinton and Burlington, to express support for Jamfest. Doninger was among four students to sign that message, but it was drafted and sent by another student, according to the lawsuit.

When Doninger encountered Niehoff in the school hallway, the principal scolded her for the message and said the superintendent was angered by it and that Jamfest might be canceled, the lawsuit says.

Later that night, about 9:25 p.m., Doninger used her personal computer to post the entry on the blog.

"Jamfest is canceled due to the douchbags in central office. Here is an e-mail that we sent out to a ton of people and asked them to forward to everyone in their address book to help get support for Jamfest," she wrote. "Basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and e-mails and such. We have so much support and we really appreciate it. However, she got pissed off and decided to just cancel the whole thing all [sic] together."

A few weeks later, on May 17, Doninger went to the school office to accept her nomination for class secretary. Niehoff handed a copy of the blog entry to Doninger and told her to apologize to Schwartz, tell her mother about the blog entry, resign as class secretary and withdraw her candidacy, according to the lawsuit.

Avery said she apologized and told her mother, but would not resign or withdraw. Niehoff then dismissed her from the post and barred her from running for the office, according to the lawsuit.

"This is something I felt was really necessary I stand up for," Doninger said Monday.

Jeremy Paul, dean of the UConn Law School, says the outcomes of recent student free speech cases have varied greatly depending on individual facts.

The law, he explained, is still blurry when it comes to the significance, weight and influence of communications over the Internet, such as content from blogs.

At issue, Paul said, is not just the severity of the punishment and whether the consequences were outlined by a particular school policy, but whether web-based content and opinions generated and distributed off school grounds can merit a punishment by school officials.

"The existence of the Internet basically poses a challenge to the fundamental distinction between on-school property or off-school property," Paul said.

While he could not predict the court's verdict, Paul added, "I think all of us who believe in free speech values ... would have liked to see a slightly more moderate response on the part of the school officials."

An Associated Press report is included.

Not necessarily the opinion of this website...historically, the Supreme Court is a leading indicator of public policy (what comes around goes around...again and again - which is why you can never take any freedom for granted).
So Much For Collegiality
Hartford Courant editorial
July 5, 2007

The Supreme Court, with Chief Justice John G. Roberts Jr. at the wheel, has wasted little time in swerving rightward and backing up. It has effectively overturned such landmark decisions as Brown v. Board of Education, but with narrow rulings that offer no clear direction and are marked by bitter division.

So much for Justice Roberts' promises at his confirmation hearings to respect precedent and build collegiality.

"It is not often in the law that so few have so quickly changed so much," said a perturbed liberal on the bench, Justice Stephen G. Breyer. This remarkable statement may have violated the court's omerta, but Justice Breyer's claim is justified. Among the cherished casualties left in the court's end-of-the-term road: racial integration, free-speech rights, the separation of church and state.

So confusing is its mess of a decision that begins to unravel Brown v. Board of Education that school districts are unclear what to do. Four justices agreed that schools should not use race to make student-placement decisions; four disagreed; and one straddled the line. What a contrast with Brown, the unanimous clarion call for school integration.

In another narrow reversal, the Roberts court made it a crime for a doctor to abort a severely deformed, doomed fetus late in its term, even if it threatened the mother's health.

The court dealt the church/state divide a blow by saying taxpayers couldn't sue to stop federal money from going to social service programs run by religious organizations.

And it welcomed back "issue" ads used by advocacy groups to surreptitiously back, or discredit, candidates in the weeks before elections. Such ads had been banned by the 2002 McCain-Feingold campaign-finance law. Hello again, soft money.

Yet the court chipped away at the First Amendment rights of the individual by backing a principle who suspended a student for displaying a "Bong Hits 4 Jesus" banner at a school-sanctioned event.

The Roberts court has weakened principles dear to American hearts with contentious decisions. And this is just its first full term.

Supreme Court To Revisit Guantanamo; Justices To Review Inmates' Claims of The Right To Challenge Detention

By William Glaberson       
Published on 6/30/2007

The U.S. Supreme Court reversed course Friday and agreed to hear claims of Guantanamo detainees that they have a right to challenge their detentions in American federal courts.

The decision, announced in a brief order released Friday morning, set the stage for a legal battle that appeared likely to shape debates in the Bush admini-stration about how to close the detention center that has become a lightning rod for international criticism.

The unusual order, which required votes from five of the nine justices, rescinded an April order in which the justices declined to review a federal appeals court decision that ruled against the detainees.

The court offered no explanation. But the order meant that the justices will hear the full appeal in their next term, perhaps by December. The court rarely grants such motions for reconsideration. Some experts on Supreme Court procedure said they knew of no similar reversal by the court in decades.

After two earlier Supreme Court decisions since 2004 that have been setbacks for the administration's Guantanamo detention policies, the order Friday signaled that the justices had determined to resolve another politically and legally freighted detention issue.

“Finally, after nearly six years, the Supreme Court is going to rule on the ultimate question: Does the Constitution protect the people detained at Guantanamo Bay?” said Neal K. Katyal, a Georgetown University law professor who argued the last Supreme Court case dealing with the Guantanamo detainees. In that case, decided last June, the justices struck down the administration's planned system for war-crimes trials of detainees.

The new case sets up a test of one of the central principles of the administration's detention policies: That it can hold “enemy combatants” without allowing them habeas corpus proceedings, which have been used in English and American law for centuries to challenge the legality of detentions.

The Justice Department declined to comment in any detail on Friday's order, which it had strenuously opposed. “We are disappointed with the decision, but are confident in our legal arguments and look forward to presenting them before the court,” said a spokesman, Erik Ablin.

The administration has argued that permitting habeas corpus suits by foreigners who are held as enemy combatants outside the United States would paralyze the military during wartime by giving courts the power to review commanders' decisions. In response, Congress passed a law last year stripping the federal courts of the power to hear such habeas corpus cases filed by Guantanamo detainees.

One issue in the case is whether Congress had the power to enact that law, because a constitutional provision bars the government from suspending habeas corpus except in “cases of rebellion or invasion.”

Lawyers for many of the 375 men now held at the naval station on a scrubby corner of Cuba greeted the court's unexpected action with euphoria. “The Supreme Court has taken a giant step toward ensuring the detainees a day in court,” said David H. Remes, a Washington lawyer who represents Yemeni detainees at Guantanamo.

Lawyers for detainees had filed some 300 habeas cases, which were working their way through the courts when Congress passed the law last year. Democrats in Congress have been pressing to explicitly grant the detainees habeas rights. Some supporters said Friday's decision would increase political pressure for such a measure, although administration officials have said the president would probably veto such a measure.

Even so, the court's decision Friday could increase momentum within the administration to find a way to close the Guantanamo detention center. President Bush and other administration officials have said that they would like to close it, but the question of where else to hold detainees who are considered too dangerous to release is a complex one.

Friday's reversal by the Supreme Court suggested that Justice Anthony M. Kennedy, who opposed hearing the case in April, had changed his position. Although the vote tally for Friday's decision was not released, there have been indications that Kennedy's position on this case has been pivotal. But lawyers said it was not possible to predict how he might eventually vote in what could be a divisive issue on the court.

Lawyers on both sides of the issue also said the Supreme Court's review was likely to focus on the fairness of the military hearings that administration has established to determine whether detainees are enemy combatants and should be detained. In the closed hearings, known as combatant status review tribunals, detainees are not permitted lawyers and cannot see much of the evidence against them.

The detainees' lawyers have said the hearings are sham proceedings that cannot substitute for reviews by federal judges. Last Friday, while the Supreme Court was considering whether to reconsider its April decision, detainees' lawyers filed an affidavit by the first military participant in the hearing process to criticize secret hearing procedures.

In the affidavit, Stephen E. Abraham, a reserve military intelligence officer, described the process of gathering evidence as haphazard and said commanding officers exerted pressure to have the panels find that detainees were properly held as enemy combatants.

Although military officials said they disagreed with Abraham's characterizations, lawyers involved in the case said Friday that the affidavit may have helped convince some justices they should more closely examine the legal procedures at Guantanamo.

In the case now before the Supreme Court, the federal appeals court in Washington in February upheld the law that stripped federal judges of authority to review foreign prisoners' challenges to their detention at Guantanamo Bay.

In the case, Boumediene v. Bush, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit found that the 2006 law did not violate the constitutional provision that bars the government from suspending habeas corpus.

Two of the three appeals court judges said the right of habeas corpus did not extend to foreign citizens detained outside the United States. In fighting the effort to get the Supreme Court to review that decision, the administration has argued that habeas corpus rights “would not extend to aliens detained at Guantanamo Bay as enemy combatants.”

The Supreme Court has twice before faced similar questions, ruling in 2004 that federal courts did have jurisdiction to hear Guantanamo detainees' cases. Last June, the court said the administration's plan to try some of the Guantanamo detainees in military commissions was invalid and struck it down.

Friday's order vacated an April 2 order of the justices declining to hear the appeal at that time. Unusual language in justices' statements accompanying that order had suggested maneuvering among the justices on whether or when they should again get involved in the tangled legal questions presented by Guantanamo.

A statement “respecting the denial” of the detainees' requests in April was signed jointly by justices John Paul Stevens and Anthony M. Kennedy. It said the detainees had to contest findings of the military hearings in the federal appeals court in Washington, as provided by Congress, before going to the Supreme Court.

Link to decision itself below...comment on how it relates to Sheff v. O'Neill...
Court strikes racial diversity school programs
By James Vicini
28 June 2007

WASHINGTON (Reuters) - Public schools cannot use race to decide where students attend classes, the Supreme Court ruled on Thursday in a significant civil rights decision that may affect millions of students nationwide.

By a 5-4 vote on the last day of its term, the court's conservative majority struck down voluntary programs adopted in Seattle and Louisville, Kentucky, to attain racial diversity in public school classrooms.

The ruling added to a string of decisions this term in which President George W. Bush's two appointees -- Chief Justice John Roberts and Justice Samuel Alito -- have shifted the court sharply to the right on divisive social issues like abortion and student free-speech rights.

"The principle that racial balancing is not permitted is one of substance, not semantics," Roberts wrote for the majority. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

The court's four liberal members said in a bitter dissent that the ruling threatened the Supreme Court's historic Brown v. Board of Education decision in 1954 that outlawed racial segregation in the nation's public schools.

"The last half century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown," Justice Stephen Breyer wrote. "This is a decision that the court and the nation will come to regret."

He said resegregation of schools is on the rise and that the ruling took away at least one tool that some districts now consider vital.

The Supreme Court addressed similar issues in 2003 when it ruled by 5-4 that racial preferences can be used in university admission decisions. But since then, Alito replaced the author of that opinion, the more moderate Justice Sandra Day O'Connor.


Roberts and Alito were joined by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, the court's only black member, who wrote a separate opinion emphasizing his view that the U.S. Constitution is "colorblind."

It marked the first time the court had addressed a school district's voluntary use of race-based pupil assignments for a purpose other than to remedy the effects of past segregation.  In one case, Seattle used race as a tie-breaking factor in deciding who gets into certain public high schools when too many students seek admission.  School officials there aim for each school to have about 40 percent white students and 60 percent racial minorities, reflecting the city's overall racial composition.

In the other case, the Louisville area school district used similar racial guidelines to keep black student enrollment at most elementary, middle and high schools between 15 percent and 50 percent.

The court majority struck down both programs -- a position the Bush administration had recommended.

Democrats and civil rights groups denounced the decision.

"Once again, the Roberts court has shown its willingness to erode core constitutional guarantees," New York Sen. Hillary Clinton, a 2008 Democratic presidential candidate, said.

Opponents of the programs applauded the ruling. "Now, an estimated 1,000 school districts around the country that are sending the wrong message about race to kids will have to stop," said Sharon Browne of Pacific Legal Foundation.

The ruling produced five separate opinions totaling more than 160 pages.

In his opinion agreeing with parts of the majority ruling, Kennedy said public schools may use ways, other than racial classifications of students, to foster diversity, such as the drawing of school boundary lines.

Justice John Paul Stevens, in a separate dissent, said, "There is a cruel irony in the chief justice's reliance on our decision in Brown v. Board of Education." He said the majority had failed to follow Brown and other precedents.

Supreme Court Rules In Favor Of Microsoft In AT&T Patent Case 
By Pete Yost , Associated Press Writer  
Published on 5/1/2007
Washington — The Supreme Court sided with Microsoft Corp. on Monday, finding that U.S. patent law doesn't apply to software sent to foreign countries.

In a 7-1 decision, the court rejected AT&T's position that it is entitled to damages for every Windows-based computer manufactured outside the United States using technology that compresses speech into computer code.  The telecom company had said computers running the Windows operating system infringe on AT&T technology for a digital speech coder system.

The decision could impact other lawsuits against Microsoft and save the company billions because of the global scope of its operations.

The Supreme Court said software should be treated like exported blueprints and schematics, to which U.S. patent law does not apply.

The court cannot say that Congress intended “to place the information Microsoft dispatched from the United States in a separate category” from blueprints, Justice Ruth Bader Ginsburg wrote in the majority opinion. “The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law.”

Justice John Paul Stevens dissented.

When a patented product is manufactured and marketed in a foreign country, U.S. patent law generally does not apply.

But AT&T said Microsoft ran afoul of a 1984 law making it patent infringement for a company to ship components of a patented product to a foreign country for assembly there. A U.S. District Court and the U.S. Court of Appeals for the Federal Circuit agreed with AT&T.  Microsoft ships its Windows-operating system to foreign countries on master disks or via electronic transmissions. That data is copied by foreign companies that install it on the computers they manufacture.

Ginsburg said that neither Windows software nor a computer standing alone without Windows installed infringes AT&T's patent.

Copying parts abroad for assembly and sale abroad is properly the subject of foreign law, the Justice Department told the court.

U.S. Supreme Court says buttons at murder trial did not bias jury 
By MARK SHERMAN, Associated Press Writer 

Posted on Dec 11, 6:10 PM EST

WASHINGTON (AP) -- Murder trial spectators were free to wear buttons with a picture of the victim in front of the jury that convicted his killer, the Supreme Court concluded unanimously Monday.  The ruling reinstated a murder conviction in California that had been reversed by a federal appeals court.

But the justices left open the question of whether spectators' conduct could cross the line and deprive a defendant of a fair trial.

The court ruled in favor of California prosecutors who said the buttons were a harmless expression of grief by family members at the trial of Mathew Musladin.  It was the first time the justices ruled on a case involving the conduct of courtroom spectators.  In previous cases, the court has weighed in to prevent prosecutors from clothing defendants in prison garb or shackling prisoners in a courtroom, other than for the most pressing security reasons.

Connecticut state Rep. Michael Lawlor, co-chairman of the General Assembly's Judiciary Committee, said the ruling resolves "any constitutional doubts" to a Connecticut law passed six years ago making it clear that a victim's photograph can be shown to a jury.

The state law was part of a victims' rights bill, affirming that images of a victim may be shown to the jury during the opening and closing arguments by the prosecutor, Lawlor said in a statement.

Race And Education Issue Returns To Supreme Court
By Mark Sherman, Associated Writer 
Published on 12/5/2006
Washington — Civil rights advocates listened glumly Monday as the Supreme Court confronted anew the divisive issue of race in education, this time in public school plans that take account of a student's race to promote diversity.

The challenge for any lawyer hoping to win at the high court is to get to five — the number of votes needed among the nine justices. It was hard Monday to find five who appeared inclined to sign off on plans used in Louisville, Ky., and Seattle to keep schools from segregating along the same lines as neighborhoods.

“It's even more difficult to win these cases now, and it was never easy,” said Theodore Shaw, director counsel of the NAACP Legal Defense and Education Fund.

Justice Anthony Kennedy, the court's swing vote since the retirement of Justice Sandra Day O'Connor, showed no indication he would side with the court's liberals to form a majority in support of the school integration plans.  Kennedy joined his conservative colleagues in indicating that the programs may run afoul of the Constitution.

Three years ago, a 5-4 ruling upheld the limited consideration of race in college admissions to attain a diverse student body.  A decision against the school districts could imperil similar plans in hundreds of districts nationwide and leave public school systems with a limited arsenal to maintain racial diversity. A ruling is expected by next summer.

In Monday's cases, parents sued after their children were denied admission to the schools they preferred because of their race. The school policies in contention were upheld by federal appeals courts and are designed to keep schools from segregating along the same lines as neighborhoods.

School districts court trouble by “characterizing each student by the color of his or her skin,” Kennedy said during the argument over the Seattle case. “It seems to me that should be allowed, if it's ever allowed, as a measure of last resort.”

Lawyers for the parents and the Bush administration said the plans violate the Equal Protection Clause of the 14th Amendment, enacted after the Civil War as part of the effort to remedy the effects of slavery.

U.S. Supreme Court to hear Seattle's school racial-tiebreaker case
By David Bowermaster and Emily Heffter, Seattle Times staff reporters
December 3, 2006

Seattle Public Schools will be under a constitutional microscope Monday when the U.S. Supreme Court hears arguments on whether the district acted properly when it used race to assign students to its most popular schools.  To many in Seattle, the case is old news. The lawsuit was filed six years ago and the students originally involved are now in college. The district has suspended use of its "integration tiebreaker" since 2001.

But to constitutional scholars, school administrators and civil-rights advocates, the case titled Parents Involved in Community Schools vs. Seattle School District is significant.

"It's perhaps the most important case the [Supreme Court] is taking up this year," said Douglas Kmiec, a professor at the Pepperdine University School of Law and the co-author of three books on constitutional law.

The case asks fundamental questions about the extent to which governments can use race to promote diversity, Kmiec said.  Specifically: Is a racially diverse student body a "compelling government interest," as previously defined by the Supreme Court, that justifies the use of race to determine where kids go to school?

The school district contends it used race as part of its process for assigning students to schools to enhance students' education by introducing them to people with multiple backgrounds and points of view.  The parents who are suing disagree. They say their children, who are white, were unlawfully discriminated against when they were denied admission to their preferred schools.

Both sides have attracted enormous support. More than 70 groups have filed friend-of-the-court briefs, including more than 50 who are defending the school district's policy as a useful and justifiable bulwark against racial inequity. 

"Open Choice" plan

The central issue before the Supreme Court will be the school district's "Open Choice" plan, which was first used in 1999 to distribute ninth-graders among Seattle's 10 traditional public high schools.  Under the plan, parents were asked to name the preferred schools for their children. Most of the roughly 3,000 freshmen went to one of their top choices.

However, five high schools — Ballard, Nathan Hale and Roosevelt in North Seattle; Franklin in South Seattle and Garfield in the Central Area — had more applicants than they could accommodate.  The "Open Choice" plan used a series of tiebreakers to allocate seats.

First, students with siblings at a given school were allowed to attend the same school.  Next came the "integration tiebreaker," which sought to have the student populations at the oversubscribed schools mirror the racial makeup of the district as a whole.

Among Seattle's 47,989 students in 1999, roughly 40 percent were white and 60 percent were students of color. If a child's race would help bring a school's students to a 40-60 split, he or she was assigned to that school.  For instance: Ballard would have been 67 percent white and 33 percent students of color without the tiebreaker in 1999, according to the district. With the tiebreaker, it became 46 percent white and 54 percent students of color, after 107 students of color were assigned to Ballard.

Yet because of the racial tiebreaker, Elizabeth Brose, a white student, could not attend Ballard or her other top choices.  Neither could Andy Kurfirst, who wanted to take advantage of Ballard's Biotech Career Academy.  Their parents and others formed Parents Involved in Community Schools and took the district to court. In the past six years, the case has been heard by the U.S. District Court, the Washington state Supreme Court and the 9th U.S. Circuit Court of Appeals.

Multiple verdicts have been rendered for and against the school district.  Most recently, a panel of 9th Circuit judges upheld the school district's policy 7-4 in October 2005.

Defense for district

Michael Madden, a Seattle lawyer with Bennett Bigelow & Leedom, will defend the district before the Supreme Court.  In the three decades before the "Open Choice" plan, he said, the district used a mix of voluntary and mandatory methods to integrate high schools that, due to residential housing patterns, were in segregated neighborhoods.

In the 1950s, he said, only 15 of the 2,500 students at Ballard High were students of color. Without the racial tiebreaker, "you're going to gradually see the diversity of that school decline," he said.  Madden added that unlike a selective college-admissions system, under the "Open Choice" plan no one is denied an education — even if a white student does not get his first choice, he's assured of a seat somewhere.

In 2003, the Supreme Court ruled that a University of Michigan policy that assigned points to African Americans, Hispanics and Native Americans on an undergraduate admissions scale was unconstitutional because it functioned too much like a quota system.

Yet the court endorsed an admissions policy used by the University of Michigan Law School that considered each student's race, because it looked at race as just one component of diversity alongside such non-racial factors as work experience, foreign-language skills and country of origin.  Madden also rejected claims that the racial tiebreaker represented a quota system, because the district did not mandate exact numbers of minorities at different schools, but instead used approximate ratios as targets.

Harry Korrell, who represents the plaintiffs, said the school district and the more than 50 supporters that have filed friend-of-the-court briefs in support of the district — including organizations such as the National Association for the Advancement of Colored People and the American Civil Liberties Union — are well-meaning but wrong.

"The vast majority of them say segregation is bad and integration is good," Korrell said. "We agree. But we don't think that has anything to do with Seattle."

In a Supreme Court filing outlining his case, Korrell said the Seattle plan violates the equal-protection clause of the 14th Amendment to the Constitution, which states "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

Seattle's high schools were racially diverse even without the tiebreaker, Korrell wrote, yet the district used "racial balancing" to achieve a predetermined racial balance in the schools.  The Bush administration weighed in on the side of the parents in a friend-of-the-court brief filed by Paul Clement, U.S. solicitor general.

The White House took particular issue with the district's stated goal of using the racial tiebreaker to promote diversity, since it did nothing to improve the racial balance at the Seattle schools that were not oversubscribed.  The populations of students of color at Cleveland and Rainier Beach in 2000-01 were 90 percent and 92 percent, respectively.

"The district's plan can hardly be justified as a tailored promotion of the interest in avoiding racial isolation, when it does not directly address the district's most racially concentrated and isolated high schools," wrote Clement.

Tiebreaker suspended

The district suspended use of the racial tiebreaker in 2001, after the original lawsuit was filed. It is not clear whether it will reinstate the policy even if the Supreme Court rules in its favor.

Without the racial tiebreaker in place, the district decides student placement based on where they live. That appears to have made mostly white schools less diverse and increased the percentage of students of color at mostly nonwhite schools.

In 2001, Franklin was 21 percent white. Since then, the percentage of white students has fallen to 10 percent.  To Brose, that simply means more kids are going to school in their own neighborhood.  And it does not mean that Franklin is not diverse, she said, pointing out the dozens of different ethnicities at the school.

"The way I look at it is that there's a lot of parents that want to send their kids to that school, because it's close to home, so the white kids aren't taking those spots," she said.

Less-popular schools grew less diverse, too.

Rainier Beach and Cleveland high schools, both of which have falling enrollment and are attended mostly by students of color, both saw the percentage of white students fall in the past five years — from 9 percent to 7 percent at Cleveland and from 7 percent to 6 percent at Rainier Beach.

A ruling in the case is expected sometime in the spring.

Landmark Supreme Court Focuses On Race In School Districting
By Nancy Benac, Associated Writer 
Published on 12/3/2006

Washington — The Supreme Court is diving into a debate over school diversity that is as old as Reconstruction-era efforts to integrate blacks into the mainstream and as new as the 5:35 a.m. start time on some buses carrying students across town in Louisville, Ky.

At a time of rising de facto segregation in public schools, the high court is to hear arguments Monday on lawsuits by parents in Louisville and Seattle who are challenging policies that use race to help determine where children go to school.  The school policies are designed to keep schools from segregating along the same lines as neighborhoods.

Educators, civil rights advocates, politicians and parents — not to mention students — are watching for a potential watershed ruling on what value the nation should place on diversity in the classroom, and at what price. The answer may hinge on the court's newest member, Justice Samuel Alito, who replaced Sandra Day O'Connor in January.

A year ago, O'Connor and her colleagues refused to hear a similar school diversity challenge from Massachusetts. After Alito's arrival, the court surprised many observers by agreeing to hear the appeals from Louisville and Seattle. Federal appeals courts had ruled in favor of both school systems.

The challenges could prove among the most significant K-12 desegregation cases since the landmark Brown v. Board of Education ruling in 1954 that banned racial segregation in public schools.  The new cases “put on the table, in a very clear way, the question of how far society, how far government, should go in terms of trying to promote diversity in education in America,” said Ellis Cose, the author of a study on affirmative action.

The Bush administration is siding with parents against the school districts, arguing the policies are an unconstitutional, albeit well-meaning, “racial balancing” without a compelling justification.  Civil rights advocates say a ruling that bars schools from taking race into account would deal a devastating blow to the promotion of diverse schools.

If the court issues a sweeping ruling against using race, “we will be witnessing a reversal of historic proportions,” said Ted Shaw, president of the NAACP's Legal Defense and Educational Foundation.

“Race-neutral” alternatives such as lotteries or socioeconomic sorting often end up segregating school populations again and hurting black students, according to Shaw's organization.  About 400 of the nation's 15,000 school districts are under court orders to desegregate. It is believed that hundreds more voluntarily take race into account; there are no firm figures.

The Leadership Conference on Civil Rights says banning the voluntary consideration of race in school assignments could result in an “absurd” situation in which districts are not allowed to promote the diversity they once were under order to achieve.

But to some parents, all of that is broad theory that does not compensate for denying kids the school of their choice or the one in their neighborhood.

Louisville parent Crystal Meredith, who is white, challenged a district policy that seeks to keep black enrollment between 15 percent and 50 percent of the population at most schools, while allowing some measure of school choice.

Meredith says the plan kept her son, Joshua McDonald, from attending a nearby elementary school. Instead, she says, he was bused 90 minutes away for two years, until she moved and her son got into his school of choice.

The result, says her legal brief, “denigrates a 5-year-old's self-worth and self-esteem” by color-coding him throughout his school years.

Not only white parents objected.

Deborah Stallworth, who is black, says she was unhappy when her young son initially was denied admittance to his neighborhood school. He was assigned to one across Louisville that would have required “busing my baby halfway to Timbuktu,” as she recalls it. Stallworth got the decision reversed.

Now 15, her son, Austin Johnson, is thriving at predominantly black Central High School, a magnet school barred by court order from taking race into account.

Stallworth says arguments that a diverse student body is necessary to teach children how to get along are nothing but “foolishness,” recalling her own years in segregated Louisville schools before court-ordered busing began.

“I don't have any problems getting along with anybody,” she said. “I have a good life.”

But Pat Todd, director of school assignment for the Jefferson County schools, said most parents value the diversity produced by the school assignment plan. Todd said 95 percent of families get their first or second choice of school and the average bus commute in the district is 45 minutes.

“The plan has prevented the resegregation that inevitably would result from the community's segregated housing patterns and that most likely would produce many schools that might be perceived as 'failing,”' the school district said in its brief to the high court.

To sisters Cassandra and Audreyanna Cosby, who are black, mixing students from around the county provides a valuable social education as well as an academic one.

“You get to check out different environments,” said Cassandra, 16, a sophomore at Central High, the same school Austin Johnson attends. Audreyanna, 14, a freshman, said: “You get to see how other people do it. “If you stay in one school, in one neighborhood, you don't know what the other schools got.”

The Seattle plan let students pick among high schools while trying to maintain a 40-60 ratio of whites to nonwhites at each school. A racial “tiebreaker” helped to determine which students were admitted to popular schools that were “oversubscribed.”

In 2000-2001, about 300 of 3,000 ninth-grade students were denied the school of their choice because of their race; the racial tiebreaker was discontinued after a group of parents sued.

“We teach our children in the Seattle public schools that people shouldn't be discriminated against,” said Kathleen Brose, the president of the group that sued. “Then when they get to ninth grade, we're judging them by the color of their skin.”

But a U.S. district judge in Seattle and the 9th U.S. Circuit Court of Appeals upheld Seattle's practice, finding a compelling interest in securing the benefits of diversity.

“We stand for all the school districts in this country that believe Brown v. Board of Education still applies,” said school district lawyer Shannon McMinimee.

“Communities are still segregated, either by the history of racism in America or by current circumstances like the affordability of housing. This is about what a school board can do to remedy the effects of past segregation,” McMinimee said.

Amy Stuart Wells, a sociology professor at Teachers College of Columbia University, said adults who attended racially diverse schools in their youth believe they are more open-minded and less fearful of other races than peers who went to segregated schools.

While racial tensions of the students' school years were challenging, Wells said, “when you talk to them 20 years later they understand what it did for them. They understand how it helped them in a multiracial society and in a global society.”

The cases are Parents Involved in Community Schools v. Seattle School District No. 1, 05-908; and Meredith v. Jefferson County Board of Education, 05-915.

A win for the environment!
Ruling gives Connecticut power to regulate greenhouse gas emissions
By ROBERT KOCH, Hour Staff Writer
September 15, 2007

REGION — State Attorney General Richard Blumenthal and others are welcoming a Vermont federal court ruling that states can regulate greenhouse gas emissions from vehicles.

Last Wednesday, Judge William Sessions III, sitting in the U.S. District Court in Burlington, Vt., concluded that "there is no question that the GHG (greenhouse gas) regulations present great challenges to automakers."

The decision, in effect, rejected automakers' claims that federal law pre-empts state rules and that technology can't be developed to meet them. The ruling concerned regulations adopted by Connecticut and 12 other states to curb greenhouse gas emissions from cars and light trucks.

Connecticut is one of several states that have adopted the same regulations of vehicle carbon dioxide emissions that was challenged in Vermont, according to Blumenthal's office.  In a press statement, the office said the federal court ruling "upholds the rights of Connecticut and other states to protect citizens from pollution caused by vehicle emissions."

"This powerful historic victory sends a momentous message: When the federal government fails, states may protect their own citizens against harmful pollution.

The court affirms vital rights of states to regulate their own air and protect their own citizens," Blumenthal said. "Connecticut's standards — modeled after California's — are feasible and affordable. They can be met with technology already in the market."

Blumenthal added "If (automakers) fail to meet the standards, they could not sell cars in the (affected) states."

"The chances are very good that they would seek to meet the standards," he said. "The standards would be set and met without additional emissions testing."

Slated to start phasing in as of 2009, the limits would require a 30-percent reduction in carbon dioxide emissions from cars and trucks by 2016, a standard the car makers have maintained would require average fuel economy standards for cars and the lightest category of trucks of 43.7 miles per gallon.  State Sen. Bob Duff, D-25, said vehicle emissions are the biggest source of carbon dioxide pollution in Connecticut and contribute to global warming.

"Anything we can do to force our automakers to live up to a stricter standard is welcome," Duff said. "Anytime we can get stricter standards in our cars and trucks, means our residents can breath easier."

During a 16-day trial that concluded in May, auto industry executives testified that the regulations — adopted by California and 11 other states and pending in three others — would not stop global warming but would impose devastating new costs on the industry.  Judge Sessions concluded otherwise.

"History suggests that the ingenuity of the industry, once put in gear, responds admirably to most technological challenges," Sessions wrote. "In light of the public statements of industry representatives, (the) history of compliance with previous technological challenges, and the state of the record, the court remains unconvinced automakers cannot meet the challenges of Vermont and California's GHG regulations."

David Doniger, senior climate lawyer with the Natural Resources Defense Council, one of several environmental groups that sided with Vermont, said the waiver request was given a big boost by an April 2 U.S. Supreme Court decision saying carbon dioxide was a pollutant worthy of regulation.  Doniger said the EPA could deny the waiver if it finds that achieving the carbon reduction standard was not technically feasible. But he said automakers "threw everything they had," providing copious documents and experts to try to persuade the judge that was the case, and he didn't buy it.

Vermont Gov. Jim Douglas hailed the court's ruling. "We were up against a very strong adversary in the auto industry, but the law and the facts were clearly on our side," he said. "Most of Vermont's greenhouse gas emissions are from motor vehicles, so if we're going to reduce our carbon footprint, we need to set high but achievable standards for automobiles."

Dave McCurdy, president and CEO of a main plaintiff in the Vermont suit, the Alliance of Automobile Manufacturers, said in a statement, "It makes sense that only the federal government can regulate fuel economy. Automakers support improving fuel economy standards nationally, rather than piecemeal, and will continue to work with the Congress, NHTSA (National Highway Traffic Safety Administration) and EPA to reduce our oil dependence while increasing fuel economy."

McCurdy said his group may appeal the decision.

Automakers maintained that cutting carbon requires improving fuel economy, since carbon emissions are proportional to the amount of gasoline burned. And they said fuel economy, under a 1975 federal law, is solely under the jurisdiction of the U.S. Department of Transportation.  The states argued that they can regulate carbon emissions as a tailpipe pollutant under the Clean Air Act.

California upped the ante in 2005 by adding carbon dioxide to its list of regulated tailpipe emissions. Other states were required either to apply the enhanced California rules or revert to the federal standard.

Automakers filed suit in California, Vermont and Rhode Island. Vermont's case was the first to go to trial, after a federal judge in California put a similar case there on hold pending the outcome of the April U.S. Supreme Court decision.

Vermont Attorney General William Sorrell, whose office represented the state in the trial, called the ruling "a major victory. They (automakers) will appeal, probably. But for folks who are concerned about global warming and environmental quality in this country and in the world, this was a good day."

A hearing is set for Oct. 22 in a similar case in California. But Matt Pawa, a lawyer who represented three national environmental groups in the Vermont trial, said the Vermont ruling makes it likely the California case will be dismised.

"The persuasiveness of Judge Sessions' decision, we expect, should carry the day" in California, Pawa said.

He called the ruling "a historic win for the planet, for Vermont, for the cause to curtail global warming, and for the right of states to set more stringent limits on all kinds of pollution, including greenhouse gas emission standards."

Court's Climate Ruling Hailed;  May Help States Fight Greenhouse Emissions
By JOEL LANG And MICHAEL REGAN, Courant Staff Writers
April 3, 2007

Addressing global warming for the first time, the U.S. Supreme Court ruled Monday that the Environmental Protection Agency must consider whether carbon dioxide and other greenhouse gases are harmful air pollutants.

The court did not order the EPA to adopt greenhouse gas regulations, and it could be years - if ever - before nationwide standards are set. But the 5-4 ruling could have a much more immediate impact on efforts by Connecticut and other states to regulate greenhouse gas emissions themselves, without waiting for federal action.

The decision was greeted with near jubilation by top Connecticut officials who have been in the forefront of state actions to limit such emissions.

"There's no downside to this from our perspective. It's a great decision," said Department of Environmental Protection Commissioner Gina McCarthy.

The ruling could be a significant factor in a lawsuit set to go to trial in Burlington, Vt., next week, in which the auto industry is fighting a plan by 11 states to limit greenhouse gas emissions from motor vehicles starting late next year.

The court's decision also could affect a pending lawsuit in which Connecticut and other states are pressing for regulations on CO{-2} emissions from power plants. That suit, against five of the nation's largest utility companies, is before the U.S. 2nd Circuit Court of Appeals in New York.

Attorney General Richard Blumenthal, who made Connecticut a plaintiff in the case called Massachusetts v. EPA, rated the decision as an "epochal environmental triumph."

"The Supreme Court has come close to closing the door on debate that climate change is a real problem," Blumenthal said. "If I were writing a brief, I couldn't do better on behalf of strong, stringent regulation."

The majority decision written by Justice John Paul Stevens said "the harms of climate change are serious and well documented" and that EPA's refusal to regulate greenhouse gases "presents a risk" that is both "actual" and "imminent."

Blumenthal said the decision likely will have ramifications for pending global warming cases in which the state has a stake. Connecticut is the lead plaintiff in the suit against the nation's five largest electric power companies to have CO{-2} emissions controlled as a "public nuisance."

"This decision is dynamite support for that suit," Blumenthal said.

Stevens wrote that the link between greenhouse gases and climate change and the potential for harm to the public from global warming have been firmly enough established to classify the gases as pollutants under the Clean Air Act, and therefore subject to EPA regulation.

In a dissent written by Chief Justice John Roberts, the minority said the EPA's refusal to consider regulating greenhouse gases was within its authority as an executive agency.

At issue in Vermont is a regulation drafted by California and adopted by 10 other states, including every New England state but New Hampshire, that would require a 30 percent reduction in greenhouse gases by 2016.

The proposed regulation, which is awaiting approval by the EPA, was established under a provision of the Clean Air Act that allows California to set its own pollution standards and other states to adopt the California rules.

The auto industry is challenging the proposed rule in federal courts in California, Vermont and Rhode Island; the Vermont case is the first to come to trial. District Judge William K. Sessions III has scheduled a hearing for Wednesday morning to discuss Monday's Supreme Court ruling and its effect on the Vermont case.

One key industry argument is that any attempt by the states to limit CO{-2} emissions is tantamount to setting mileage requirements - an authority reserved to the U.S. Department of Transportation by federal law.

That's because burning a gallon of gasoline releases a fixed amount of carbon, so the only way to reduce a given vehicle's emissions is to make it go farther on less fuel.

The EPA made a similar argument before the Supreme Court, which dismissed it. "That DOT sets mileage standards in no way licenses the EPA to shirk its environmental responsibilities," Stevens wrote for the majority.

In Massachusetts v. EPA, an alliance of states and environmental groups challenged the EPA's refusal in 2003 to regulate greenhouse gas emissions from vehicles under the Clean Air Act. In part, the EPA claimed the Clean Air Act did not give it the authority to address climate change. The Supreme Court effectively ordered the EPA to think again.
The decision "has left no doubt as to what the EPA must do," Blumenthal said. "The Supreme Court will reverse the EPA if it refuses to classify CO{-2} and other greenhouse gases as endangerment factors under the statute."

Though the process could take years, McCarthy was among those agreeing that the decision will alter the political and legal climate change landscape.

"It will help with our Greenhouse Gas Initiative [the northeastern state's plan to limit emissions from power plants], should that be challenged," she said.

Daniel Esty, director of the Yale Center for Environmental Law and Policy, said the decision in essence "changes the course of potential U.S. climate change policy in a significant way. It clearly signals that there is a Supreme Court Majority that believes climate change is real and requires attention."

Connecticut Sen. Joseph Lieberman, an independent who caucuses with the Democrats, and the sponsor of one of a half-dozen emission reduction bills before Congress, said the court decision has the effect of "knocking down yet another empty excuse for inaction" and puts the focus on the "urgency" of finding a meaningful policy for reducing emissions.

Two senior fellows at the Cato Institute, usually regarded as opposed to a national emissions control policy, also saw the Supreme Court decision as important.

"The implications may be quite staggering," said Patrick Michaels, a senior fellow who wrote a brief defending the EPA's position. It "means carbon dioxide qualifies as a `pollutant,' something that causes net harm."

Mark Moller said the decision suggests American carmakers may face emissions standards like those in the Kyoto Protocol, imposed by "judicial fiat."

A second Supreme Court decision Monday in another Clean Air Act case also favored the states. The court voted 9-0 to reverse a lower court ruling that allowed utilities to avoid installing new anti-pollution devices when they upgrade power plants.

The types of pollution in question were sulfur dioxide and nitrous oxide, which contribute to smog and acid rain.

Like Massachusetts v. EPA and the CO{-2} suit against the five large power companies, it also was brought by an alliance of states and environmental groups.

Read the case transcript from day one here:  http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1120.pdf
High court opens greenhouse gas case arguments

By JILL BODACH, Hour Staff Writer
November 30, 2006

REGION — The U.S. Supreme Court heard arguments Wednesday regarding whether the Bush administration should be made to adjust its handling of global warming threats.

Connecticut is one of 12 states participating in the lawsuit brought forward by Massachusetts. More than a dozen environmental groups, including the Union of Concerned Scientists, Greenpeace, Friends of the Earth and the Sierra Club, are also involved in the suit which contends that the Environmental Protection Agency, or EPA, should regulate the amount of carbon dioxide —
often described as a major contributor to global warming — that comes from cars.

The position of the Bush administration is that the EPA lacks the power under the Clean Air Act to impose such a regulation. Even if they had that power, the agency contends that it would still be a matter of its discretion how to implement those regulations.

Initial debate Wednesday attempted to gauge just how much harm would result if the Environmental Protection Agency does not regulate greenhouse gases from new vehicles. The result, according to James Milkey, an assistant attorney general for the state of Massachusetts, would be "ongoing harm" to the environment.

Attorney General Richard Blumenthal said that the future of this case effects "nothing less than the survival of the Earth as we know it."

Earlier this year, the Union of Concerned Scientists released a report stating that warmer fall and winter temperatures in the Northeast are a sign that global warming is not just a future threat, but a very current one.  According to the report, if current temperature patterns continue the typical summer in upstate New York may feel like the present-day summer in South Carolina by the end of the century, while summers in New Hampshire could feel like the current summer climate of North Carolina.

Increased global warming, the report states, could also lead to an increased frequency of late summer and fall droughts; spring arriving three weeks earlier; fall becoming warmer and drier; and winter becoming shorter and milder.

When the UCS report was first published, Chris Phelps, a spokesman for Connecticut Fund for the Environment, said these changes can dramatically affect water, agriculture, economics and public health. It would also change the quintessential New England winter and fall foliage, Phelps said.  Even former Vice President Al Gore has tried to draw attention to the issue of global warming with his movie "An Inconvenient Truth."

But not everyone thinks the global warming picture looks so bleak.

An October article on JunkScience.com, an online journal whose self-stated purpose is to debunk scientific "junk," said that the global warming reports are nothing but scare tactics. The article reads: " ... the planet's temperature is always changing and warming is what the globe is doing when it is not cooling, i.e., about half the time." The article goes on to say that " ... most people seem to be under the impression Earth is or should be a more or less constant temperature and that a few tenths of a degree change indicates some radical departure. This is not a valid concept."

Another article featured on OpinionJournal.com by Richard S. Lindzen, Alfred P. Sloan Professor of Meteorology, Department of Earth, Atmospheric and Planetary Sciences at the Massachusetts Institute of Technology and well-known global warming skeptic, acknowledges the effect carbon dioxide has on the environment but says the effect is not as great as it some environmental groups say it is.

Lindzen writes: "There is little disagreement that levels of carbon dioxide in the atmosphere have risen from about 280 parts per million by volume in the 19th century to about 387 ppmv today ... there has been no question whatever that carbon dioxide is an infrared absorber (i.e., a greenhouse gas — albeit a minor one), and its increase should theoretically contribute to warming. Indeed, if all else were kept equal, the increase in carbon dioxide should have led to somewhat more warming than has been observed, assuming that the small observed increase was in fact due to increasing carbon dioxide rather than a natural fluctuation in the climate system."

Despite the skeptics, individual states have made changes emissions standards to reduce carbon dioxide emissions. In 2004, Connecticut adopted the California Clean Cars Standard, a standard not adopted by all 50 states. In 2006, the state Senate passed Bill 920 to create a strategy to reduce black carbon diesel pollution.

But environmentalists say there is more to be done and that having a mandate for cleaner-burning cars is one way to ensure that this type of pollution will be decreased.

"Connecticut residents should feel a tremendous sense of pride in our attorney general's work to pursue all avenues of controlling global warming pollution," said Roger Smith, campaign director for Clean Water Action and coordinator of Connecticut Climate Coalition. "As coordinator, I work with over 90 partner organizations across the state to make sure Connecticut does its part to reduce our pollution, and we need the attorney general to hold Washington and other states accountable for theirs."

Smith said he is hoping that the Supreme Court will give greater clarity as to whether the EPA has to act to stop global warming under the Clean Air Act.

Court Bars Suit Against Faith-Based Plan
Hartford Courant
By PETE YOST, Associated Press Writer
2:14 PM EDT, June 25, 2007

WASHINGTON -- The Supreme Court ruled Monday that ordinary taxpayers cannot challenge a White House initiative that helps religious charities get a share of federal money.

The 5-4 decision blocks a lawsuit by a group of atheists and agnostics against eight Bush administration officials including the head of the White House Office of Faith-Based and Community Initiatives.
The taxpayers' group, the Freedom From Religion Foundation Inc., objected to government conferences in which administration officials encourage religious charities to apply for federal grants.

Taxpayers in the case "set out a parade of horribles that they claim could occur" unless the court stopped the Bush administration initiative, wrote Justice Samuel Alito. "Of course, none of these things has happened."

The justices' decision revolved around a 1968 Supreme Court ruling that enabled taxpayers to challenge government programs that promote religion.

The 1968 decision involved the Elementary and Secondary Education Act, which financed teaching and instructional materials in religious schools in low-income areas.

"This case falls outside" the narrow exception allowing such cases to proceed, Alito wrote.

In dissent, Justice David Souter said that the court should have allowed the taxpayer challenge to proceed.

The majority "closes the door on these taxpayers because the executive branch, and not the legislative branch, caused their injury," wrote Souter. "I see no basis for this distinction."

With the White House Office of Faith-Based and Community Initiatives, President Bush says he wants to level the playing field. Religious charities and secular charities should compete for government money on an equal footing.

White House spokeswoman Emily Lawrimore called the ruling "a substantial victory for efforts by Americans to more effectively aid our neighbors in need of help."

She said the faith-based and community initiative can remain focused on "strengthening America's armies of compassion."

The ruling won't block other legal action against the White House initiative, opponents said.

"Most church-state lawsuits, including those that challenge congressional appropriations for faith-based programs, will not be affected," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State.

The outcome of the case before the Supreme Court was disappointing, Lynn said, because "taxpayers should be allowed to challenge public funding of religion, whether the money is allocated by Congress or the White House."

"It's a bad day for the First Amendment. The Supreme Court just put a big dent in the wall of separation between church and state," said Ralph G. Neas, president of People For the American Way Foundation, a liberal-oriented group.

The White House program appears to have had a substantial impact.

In fiscal 2005, seven federal agencies awarded $2.1 billion to religious charities, according to a White House report. That was up 7 percent from the year before and represented 10.9 percent of the grants from the seven federal agencies providing money to faith-based groups.

Among the programs: Substance abuse treatment, housing for AIDS patients, community re-entry for inmates, housing for homeless veterans and emergency food assistance.

The Bush administration says taxpayers should not be allowed to challenge the government's conferences because Congress did not earmark funds for a specific program and no funds were distributed outside the government. The White House pulled money for the conferences out of general appropriations.