Supreme Court Hears Major Civil Rights Cases

The U.S. Supreme Court will hear several cases in the coming weeks that could re-define government policies on race and civil rights. Harvard Law Professor Charles Ogletree explains the cases and gives his take on how the high court might rule.

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MICHEL MARTIN, host:

I'm Michel Martin and this is TELL ME MORE from NPR News.

Coming up, forget get rich quick schemes. Federal Reserve Chairman Ben Bernanke says yesterday, it's time for Americans to get smarter about money. We'll talk about that with our regular contributor on matters of personal finance Alvin Hall. But first we want to talk about the Supreme Court. In the next few weeks the court will take on, once again, one of this countries enduring dilemmas, how far the government should go in addressing this country's historic racial divide. The cases range from a challenge to a promotional exam by a group of white firefighters in New Haven, Connecticut to an argument over how Arizona treats students who are still learning English, to a case testing the constitutionality of the voting rights act. Joining us now to talk about the cases is Harvard Law Professor Charles Ogletree. He is also the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice. He has joined us from time to time to talk about what's going on the court. Professor Ogletree, welcome back. Thanks for joining us.

Professor CHARLES OGLETREE (Law, Harvard): Hello Michel, great to be with you.

MARTIN: Now I want to hear about the cases individually, but I wanted to ask is there a connecting theme to the cases involving race and ethnicity?

Prof. OGLETREE: I think there is. These cases - and there are about nine cases the Supreme Court has heard or will hear this term, on race or civil rights - the last time we've had these number of cases was 1989. And I think the court is being asked to reconsider what Congress and the executive branch thought, decades ago, was a problem of pervasive racial discrimination in voting, in hiring and promotions, and in just basic civil rights. And so these cases are reminder that we haven't solved all our problems of the past.

On the other hand, others are arguing that these issues are no longer relevant. In fact, one of the most interesting arguments that we've heard publicly, is that we've elected Barack Obama an African-American. We're in a post racial society. We won't need these protections any more. That is a breathtaking claim.

MARTIN: Is that an actually legal argument? Is there any actual argument?

Prof. OGLETREE: Absolutely, absolutely there have been both public remarks and citations and briefs about America has been transformed, and that we need to rethink our civil rights legislation and to reconsider these efforts to say that race is still a problem in America.

MARTIN: One of the cases that has gotten a great deal of attention comes out of New Haven, Connecticut. It involves white firefighters, including one who is Hispanic, accused city officials of violating the civil rights by throwing out a promotional exam in which they performed well but in which no African-Americans scored high enough to qualify for the promotion. Now the city said that if they had relied on those test results with such a wide racial disparity that they could have been open to being sued by the minority. So if you talk about the legal issues in this case - and in fact I should mention at this case has so much attention that it's oral arguments are to be heard tomorrow of the case. The court is going to do something which it does rarely, which is make the oral arguments available to the public the same day.

Prof. OGLETREE: Well, this is a precedent setting case in a number of ways. The first is that there is a history here that you will see and in many of the amicus briefs, that is that the 1964 civil rights act and titled VII was designed to address the pervasive impact of deliberate discriminatory practices that kept Afro-Americans out of employment opportunities. And the legislative history says, most egregious were those in firefighting and police exams that were considered prohibiting people from getting jobs even though they were otherwise qualified.

And that the court's taken this on because, in this test in New Haven, none of the African-Americans passed the test at the level for promotion. And in the views of those who challenged it, had the same vestiges of discrimination that existed decades ago and hasn't been resolved. It's interesting. This is not Alabama. This is not Mississippi. This is Connecticut. The reality is that these issues are not resigned to a particular part of the country. They are pretty serious. I think what we can predict is that the Supreme Court will probably come on 5:4 on this case as it did on another case earlier this term.

The only questions which way will it go? Will it uphold the idea of throwing these tests out because they discriminate, or say we've moved past the issue of racial discrimination and we're discriminating against the whites and Hispanics who passed the test at a higher level, snd therefore, the test results should be used. It's going to be a very interesting debate tomorrow.

MARTIN: The thing that's interesting about this case is that 60 percent of the exam was the standardized test, and 40 percent of the grade was an interview. Which one could argue is at least a subjective so is the heart of the case the standardized test portion, is that the critical factor here?

Prof. OGLETREE: It's a big part of it. But it's also - there is a subjective part in the interview. But there's also the idea of what are you asking that directly relates to the qualifications to be an excellent firefighter or police officer, more generally, in these cases. And I think that's where people have found questions that don't seem to correlate at all with their qualifications to do great jobs or to be a supervisor, but they correlate with people's ability to take an exam and do well. That's what is that the essence of this.

I think the court will probably focus on a lot about what does the test require and the fact North Americans passed it as a problem that the court may say well when can we ever solve this problem. Do we have to throw out everything until there is a critical mass who can pass the test. I think they will not rest comfortable with that result but I do hope they'll see that we've eliminated all the vestiges that they were part of the discrimination history of the last 40 years and find someway they say that what New Haven has done is courageous. They are not discriminating against anyone when no one gets promotion. That' an idea that each person is treated the same because no one gets a benefit of a testing system that seems to discriminate against those who have been discriminating against historically.

MARTIN: And of course the white firefighters argue that their efforts are that they are being discriminated against because their ability to master the test is not being recognized. So anyway we need to jump in so many more cases to address and if you're just joining us this is TELL ME MORE from NPR News. I'm talking about some of the cases under review by the Supreme Court.

We're speaking with Harvard Law Professor Charles Ogletree. And of course testing is also an issue in this Arizona case that talks about the fact that kids who were primary Spanish speakers because they are not progressing as quickly as native speakers of English. And the case speaks about whether or not the state is providing enough funding to teach English to nonnative speakers. What's the legal issue here?

Prof. OGLETREE: Well, the legal issue is that this is another example where there have been historic efforts to try to reduce the disparity in educational learning between minorities and nonminorities. And Arizona's one of those states that was forced to make sure that they provided adequate support for Mex-American children. And the point now is that Mex-American children still aren't learning at the level they should be learning at. And these tests, they are supportive to improve their skills are critical from the point of view of those who are administering them.

And I think one of the challenges is that well, you know, we've tried this, we have done this, why do we need to continue to abide by prior rulings. And the reality is that there is a history that children are treated differently because they don't have the same foundation in their education. And therefore, these tests, these efforts to help the Mex-American children are critical. It's a legacy problem. It's the vestige problem that we still have and I think the Supreme Court and the ninth circuit agreed with that and denied the appeal and now the Supreme Court will have a chance to examine what the local courts did and what the ninth circuit did ruling in favor of these children's parents.

MARTIN: We also wanted to talk about this, the case involving the extension of the Voting Rights Act. In fact, it was one of the occasions you mentioned where the argument is being made that Barack Obama's election demonstrates that this is no longer needed. But I did want to say, we only have a couple of minutes. So I wanted to ask about the case that is not about race per se but it is also in Arizona and it is one that pushes so many people buttons, I just had ask you about it. It involves the case against the Safford United School District by April Redding. Of course she was 13 years old at that time. She was strip searched by administrators who say they were acting on a tip that she had given ibuprofen to another student. And, of course, no ibuprofen nor any other banned substance was found on her. And this young lady says she was so traumatized by this, that she never went back to that school. What are the legal issues here?

Prof. OGLETREE: Well, this is very easy in terms of if you think about what the Fourth Amendment protects against unreasonable searches and seizures. And you captured it in your description. This is a strip search. This is not a pat down, this is not based on some actual evidence that someone had violated the law. And, in fact, this was among a student. And I think the idea that you give school officials unprecedented authority to engage in strip searches, is, I think, something that even this Supreme Court, as much as it wants to protect the power of law enforcement, will not uphold the idea that a 13-year-old in a school setting on a hunch can be subjected to a strip search. It went too far.

And I think her mother has a valid ground for a lawsuit. And I think the Supreme Court will not stand in the way, even though it will applaud the efforts of schools to try to deal with discipline. It will also say there has to be some rules and some procedures followed, and here they weren't followed. It was a hunch, it was a strip search. It turned out no drugs, no violation of any school policy.

If you uphold it, it means that the Fourth Amendment means nothing going forward, that anybody in any educational setting can use a hunch to strip search someone else's child. And I think parents and children should rightly be outraged and there are many school administrators who would say, we don't need that, that's not the way to run a school and that's not what we're here to do. We're here to educate our children, not to punish them.

MARTIN: Well, and, of course, school officials are saying they did need these extreme measures because the drug problem is so pronounced. But in the minute that we have left, I did want to ask you about this case involving the constitutionality of Congress is extending yet again of the section of the Civil Rights Act, which requires a number of state and local governments to get permission in Washington to change their election laws or procedures. If you'd talk about that in the minute we have left.

Prof. OGLETREE: There are two cases. One was already decided, that prevented the North Carolina legislature from increasing African-American representation, that's section II of the Voting Rights Act. This is section V about whether or not the organization in a particular area has to get a pre-clearance from the government in order to modify its Voting Rights Act restrictions. Here's the issue. In reality, in the history of discrimination and voting has been pervasive, it hasn't been completely resolved, whether it's the north, or the south, or east, or the west, it's not regional anymore.

And in this case, in west Austin, the municipal company said we didn't discriminate. This is a 1960s problem. We're not like Texas was 40 years ago, give us some latitude. But this was a law passed by President Bush's Congress with bipartisan support from Republicans and Democrats, and it reflects a sense that we have not solved our voting rights problem. This is going to be another five-to-four decision. And I think in this one the Supreme Court's going to say, section V of the Voters Rights Act, the pre-clearance is important as - today as it was 40 years ago.

And on these facts will affirm the decision that has been already affirmed by the D.C. circuit, where Chief Justice John Roberts formerly sat, and Antonin Scalia formerly sat and Ruth Bader Ginsberg formerly sat.

MARTIN: Okay.

Prof. OGLETREE: So I suspect it will get a result that will be favorable to allow the Voting Rights Act to do what it's been doing - to stop discrimination on the basis of race and voting opportunity.

MARTIN: Okay. Well, we have to leave it there. So many cases, so many complex issues and so little time. Thank you so much for racing through those for us. Harvard Law professor, Charles Ogletree, is the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice. He was kind enough to join us from the studios of Harvard University. Professor Ogletree, we thank you again.

Prof. OGLETREE: Always a pleasure.

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Supreme Court Hears Case On English In Schools

The U.S. Supreme Court hears arguments Monday in a case testing what states must do to comply with the federal law requiring public schools to teach children to speak English. Butting heads in the case are politicians, federal laws, the power of the federal courts to enforce judicial orders, and the power of state legislatures to decide how to spend taxpayer money.

Nogales, Ariz., along the border with Mexico, is heavily Hispanic. Many, if not most, of the children who go to school there speak Spanish at home. Unless they learn English at school, they almost inevitably fall behind.

Miriam Flores was one of those youngsters.

"It was quite a disadvantage, definitely," Flores says. "For example, even when it comes to math, I mean problem solving, they were all in English. So in order to understand, you need to be proficient in your reading in English."

The same was true for science, social studies and the other subjects. Flores and other youngsters like her were drowning — falling further and further behind. So Flores' mother and other parents sued the state of Arizona for failing to live up to the federal law that requires all states to take the steps needed to overcome language barriers so that non-English language speaking students can become English-proficient and fully competitive. The law, first enacted in 1974, provides a right to sue to enforce this mandate.

In 2000, a federal judge declared that the state of Arizona was in violation of the federal law. The judge said the state had failed to put in place trained teachers and programs reasonably calculated to teach English. He found that some teacher aides did not themselves speak adequate English, and that the state was spending less than $150 to bring each child up to speed.

Since then, the state says it has built more schools, hired more teachers, shrunk the size of classes and doubled the amount spent per pupil on English language learning.

But the state and the courts have remained at loggerheads. Most recently, a federal appeals court ruled that the state's overall increase in general education spending and management improvements in Nogales did not excuse the state from its obligation to develop and fund an appropriate English language learners program. When the state's Democratic attorney general decided not to appeal, the Republican speaker of the House and the Republican president of the Senate hired their own lawyers, appealed, and to the surprise of almost everyone, the Supreme Court agreed to take a look at the case. Their principal ally is Tom Horne, the state's superintendent of education, also a Republican. He sees the case as an example of a judiciary run amok.

"That's why it's so vital that we win this case and that the U.S. Supreme Court rule that it's up to the people of Arizona, the taxpayers, to determine how much they want to spend, and it's not a matter to be dictated to by lifetime federal judges who are not responsible to anyone.

Lawyers for the non-English speaking children say that's a caricature. For years, they say, Arizona failed to come up with any sort of a plan that would comply with federal law.

"What the state needs to do is to come forward with a plan and a commitment of resources that shows a sustainable, durable program that's going to ensure that these students have an equal opportunity to participate in the educational system," says lawyer Sri Srinivasan. "And they haven't done that to date."

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