Category Archives: Law

Marc Dreier explains his descent into crime

Marc Dreier (who has too many vowels in his name), a formerly successful attorney, has written a letter explaining how he went from being a smart successful professional to a fraud who stole millions (billions?) from his clients. It was written for the judge in his case, and released for public consumption. It’s about three pages and worth a read.

Personal Letter From Marc S. Dreier to Jed S. Rakoff


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Court Surprises Observers: Middle School Strip-Search Unconstitutional

Surprising observers in who believed that:

it’s plain the court will overturn a 9th Circuit Court of Appeals opinion finding a school’s decision to strip-search a 13-year-old girl unconstitutional

the court found (8-1 with Thomas in the minority again) that a school’s decision to strip-search a 13-year-old girl was unconstitutional. The majority opinion was written by Justice Souter, but there were concurring opinions by Justice Stevens (joined by Ginsberg in part), and Justice Ginsberg. You can read all of the opinions here.

The majority found two important points (and one lesser point):

  1. The “strip search” of then 13 year-old Savana Redding was unconstitutional pursuant to the tests set forth in New Jersey v. T.L.O.
  2. The people who conducted the search should not be liable for their actions because the law was not clear.
  3. The appeals court should consider whether the Safford School District as a whole can be found liable.

A quick factual note: I will use the phrase strip search, because the term was used by the Court, even though the search of Redding does not meet traditional conceptions of strip searches.  Redding was not forced to get nude, but rather was told to strip to her underwear (bra and underwear) and then move her bra and underwear to assure the searchers that there was nothing in her underwear.  At no point did the searchers (both female) see her breasts and pelvic area.

On the first point, the Court found that the test established in New Jersey v. T.L.O about school searches should be applied to this case.  As Justice Stevens explains in his concurring opinion:

In New Jersey v. T. L. O., 469 U. S. 325 (1985), the Court established a two-step inquiry for determining the reasonableness of a school official’s decision to search a student. First, the Court explained, the search must be“‘justified at its inception’” by the presence of “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” Id., at 342. Second, the search must be “permissible in its scope,” which is achieved “when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Ibid. (emphasis added [by Stevens]). pg.1

In this case the Court found that the search was “justified at its inception” because the assistant received two reports that Redding was involved in distribution of Ibuprofen (against school rules). However, the search, was found to be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” In the words of Justice Souter:

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

We mean […] to make it clear that […] reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

The second point is where the Court divided a bit more. On this question, the Court split 7-2 (with Stevens and Ginsberg in the minority).  The majority decided that the circuit courts had been split over the past twenty years and the school administration couldn’t have known where their constitutional right to search ended. Since, they couldn’t have known that they were violating Redding’s constitutional protection from unreasonable search and seizure, they shouldn’t be held liable for their actions.

Ginsberg and Stevens disagree with this argument.  While Stevens argues that the Court made itself clear in TLO, Ginsberg argues that under most standards the principal was abusing his power by ordering the search and so should still be held liable.

The third point is that the 9th Circuit Court of Appeals did not address the question of whether the school district as whole could be held liable or not.

Thomas continues to be the strongest opponent of students rights.  This shouldn’t surprise anyone.  In Morse v. Frederick he wrote:

In my view, the history of public education suggests that the First Amendment,  as originally understood, does not protect student speech in public schools. […]

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.

In this case, he argues:

the health and safety of the students in their charge. This deepintrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.”

I guess we couldn’t have expected much else…

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Voting Rights Act Upheld- Context and Analysis.

Today, the Supreme Court announced their 8-1 decision in the case Northwest Austin Municipal Utility District v. Eric Holder Jr, Attorney General et al.. The court held that the Northwest Austin Municipal Utility District Number One (NAMUDNO) was allowed to apply to bailout of the requirements under the Voting Rights Act of 1965 extension (2005).  Clarence Thomas was the lone hold out.  You can read the full (slip) opinion here.  This case is somewhat confusing because all sides are claiming victory. As I will show, although short-term relief from proponents of the Voting Rights Act (VRA) is well-deserved, the long-term fate of section 5 of the VRA is more questionable.  If you know the back ground feel free to skip to the analysis.


This story begins in 1870, when enough states ratified the Fifteenth amendment the constitution which reads:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

As most students of history know, racism at the polls did not end in 1870.  Societies that were not willing to abandon slavery, were certainly not prepared to allow non-whites electoral power.  Instead of outright banning African-Americans from voting, many states (mostly in the South) adopted election rules that incorporated devices such as a poll tax or a literacy test as prerequisites for voting.  Of course, they also provided exceptions for those able to vote prior to the enactment of those tests (aka poor whites and illiterate whites). For almost 100 years, these rules disenfranchised almost all African-Americans in the South.

In 1965, the Congress passed and President Lyndon Johnson signed one of the most important pieces of legislation in the history of the American civil rights, the Voting Rights Act of 1965. This act outlawed all forms of discrimination at the polls. It gave the federal government power to prosecute and punish individuals, states, or political sub-divisions which sought to prevent equal access to the ballot.

The most controversial parts of the Voting Rights Act, were those that only applied to “covered jurisdictions” which were those jurisdictions with a history of electoral discrimination.  Those jurisdictions had a bear a specific burden because of their history.  Section 5 of the VRA required that those covered jurisdiction had to clear any changes in their electoral rules with the Department of Justice or a special three-judge panel in DC to ensure that those changes wouldn’t make it harder for minorities to vote.  This is called obtaining “pre-clearance.”

This section was initially meant to last five years, but then Congress extended it another five  years in 1970, extended it again in 1982 and most recently in 2006. This renewal will expire in 2031.  During those years, courts added more “covered jurisdictions” due to new evidence of discrimination. During that time, Congress amended the VRA to allow covered jurisdictions to terminate (bailout) their status as a “covered jurisdiction.”  In order for a court to grant a bailout the jurisdiction

must show that for the previous 10 years it has not used any forbidden voting test, hasnot been subject to any valid objection under §5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive effortsto eliminate intimidation and harassment” of voters, and similar measures. §§1973b(a)(1)(A)–(F).

Seventeen counties and cities, all in Virginia, have received bailouts from the Department of Justice.  According to seven bailed out jurisdictions, “the process was not costly, administratively burdensome, or difficult.”

Below is a map of all current covered jurisdictions and bailed out jurisdictions from the DOJ:

Map of all Covered Jurisdictions

Map of all Covered Jurisdictions

The Northwest Austin Municipal Utility District Number One is a “covered jurisdiction” because it has elections for its board, and is located in the state of Texas.  In 2002, they wanted to move its election location from private homes to a public elementary school.  In order to do this, they were required to get pre-clearance, they did so and were approved.  However, backed by a conservative group, they decided to file for a bail-out and to challenge the constitutionality of section 5.

The district court ruled (in a 121 page opinion) that the NAMUDNO was not allowed to bail-out because the law required jurisdictions to be jurisdictions that registered voters, but the NAMUDNO did not.  Further, the district court decided that section 5 of the VRA remained constitutional.  NAMUDNO argued that the extraordinary conditions that allowed the federal government to regulate elections—usually governed by local government—had not been reinvestigated by Congress before reauthorizing the VRA.  The court responded that:
given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress’s decision to extend section 5 for another twenty-five years was rational and therefore constitutional.
The VRA requires that challenges to the district court go straight to the Supreme Court.
Many observes believed that the Roberts court would side with the NAMUDNO and declare section 5 unconstitutional.
At MyDD Jonathan Singer wrote:
There is a chance that the conservative Justice Anthony Kennedy will find a way, even if a narrow way, to uphold Section V of the Voting Rights Act. But it seems highly likely, if not a foregone conclusion, that the four hard right conservatives on the Supreme Court — John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito — will all take the activist step (as [Norm] Ornstein puts it) of overturning the landmark civil rights bill

As the Supreme Court wraps up its term, the Justices seem likely to strike down a key part of the Voting Rights Act. According to sources in and outside of the Justice Department, a team of the department’s lawyers has been strategizing in private for weeks to plan a speedy response to a potential loss in court.

Slate’s Dahlia Lithwick lamented:

The real question for the court today is whether there are indeed five votes for saying that for purposes of Section 5, America is so right that Congress must be wrong. It looks like there may be. And that’s a long, long journey for the humble, minimalist Roberts Court.

To many people’s surprise, the Court deferred ruling on the Constitutional question and limited their ruling to the question of whether NAMUDNO ought to be allowed to apply for a bailout.  However, they showed that the majority of the court were not fans of Section 5, and given another opportunity without action from Congress, they probably will strike section 5.

They ruled that despite the fact that NAMUDNO did not fit the exact definition of a jurisdiction (because it did not register voters), the Court had previously held that other political subdivisions could be held to the standards of the VRA and therefore they should be entitled to the relief of bailouts as well.

Despite deferring on the constitutional question they devoted a third of their opinion to the constitutional question and the author seemed ready to decide that section 5 of the VRA was not constitutional.  They seemed to have four specific problems (in chronological order) with the legislation:

  • Covered Jurisdictions may no longer need coverage due to civil rights progress
  • Section 5 exceeds the authority granted to Congress by the 15th Amendment
  • Section 5 treats the each state differently
  • The trigger is set to 1972

The Court’s first problem with section 5 of the VRA is that they don’t seem convinced it’s necessary anymore.  They site the vast improvements in the numbers of minorities registered to vote, in particular the fact that “voter registration and turnout have approached parity” (7) and the fact that in some of [the covered] States “blacks now register and vote at higher rates than whites”(6).

They allow that, “These improvements are no doubt due in significantpart to the Voting Rights Act itself, and stand as a monument to its success” but then say that “past success alone, however, is not adequate justification to retain the preclearance requirements.”

The second concern they mention is that section 5 goes beyond the authority granted to Congress in the Fifteenth Amendment, because it requires that covered jurisdictions receive approval for ALL changes to electoral programs.  They reason that because of this deficiency, the section 5 needs especially strong justification pg. 7.

This is their weakest argument by far.  The Fifteenth Amendment says that Congress has the power to ensure that no citizen’s right to vote is denied or abridged due to race or color. It leaves the method for doing that in the hands of Congress, and Congress determined that the VRA and pre-clearances were the best way to achieve that.

The Court’s third concern is that section 5 does not treat each state equally, as is normally done in our federal system.  They state:

a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets pg. 8.

They then go on to argue that the voter registration and turnout gaps are larger nationwide then they are in the covered states, and further that allowing this disparity creates some paradoxes in constitutional actions (considering racial impacts might be necessary in Georgia, but considered unconstitutional in a non-covered jurisdiction) (pg. 8).

While these are certainly legitimate issues, the Court would not uphold a law that required all states to submit to federal jurisdiction.  This would certainly cause more troubles than the targeted nature of the current provisions of the VRA.

Their fourth problem with section 5 is that the current trigger for being covered by the VRA is data from 1972.  While they acknowledge that the Congressional record shows that many of these covered states still have civil rights issues, they argue that:

The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions (pg. 9).

While the 1972 trigger is clearly old, I disagree with the assertion that it fails to account for current conditions.  An Amici brief by a group of former Republican office holders, recounts the significant record collected by Congress prior to the 2006 reauthorization, and it convincingly claims that this data showed little change from the records gathered in any of the previous records.  As explained by a Judiciary Committee Report:

“[d]espite the substantial progress that has been made, the evidence before the Committee resembles the evidence before Congress in1965 and the evidence that was present again in 1970, 1975, 1982, and 1992.” H.R. REP. NO. 109-478 pg. 6

Changing the trigger from that established in 1972, would not necessarily change that much given the above information, but would cause a significant amount of work, and most likely a significant amount of controversy.  It’s not as if the trigger was kept without doing any research, instead, Congress had a record of hundreds of pages which included proponents of the VRA, proponents of changes to the VRA , and opponents to reauthorization of the VRA.

Despite their qualms, the Court stated that the Congress had a strong authority to act in this area, and that they chose not to reach a conclusion on the Constitutional question, because they had narrower grounds which they could act on.  Yet their reference to Congress seemed to clearly signal, they are hoping Congress will act to assuage at least some of their four concerns.

While I do not believe that the Court’s reasoning is entirely sound, it does seem clear that Congress needs to act sooner rather than later.  If Congress acts to solve any of the “problems” above, they can probably prevent the Court’s current majority from joining in a future case.  During oral arguments, Justice Kennedy (the permanent fifth vote) stressed his concerns about federalism and the fact that different states are treated differently.  Therefore, focusing on this might be the key to ensure a Supreme Court coalition that supports the section 5 of the VRA.

A useful strategy to consider is Professor Rick Hasen’s suggestion of a proactive bailout system. Essentially, he suggests that instead of putting the onus of the bailout system on the jurisdiction, the onus ought to lie on a third party which would review whether jurisdictions qualify for bailouts.  I might even suggest doing that review nation-wide.  While this solution would be resource heavy, it would provide solid justification for covered jurisdictions and would protect against potential judicial criticism. You can read more of Professor Hasen’s suggestion here.

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