November 22, 2005
Justices Have Acted on Some Alito Choices
By THE ASSOCIATED PRESS
Filed at 3:18 a.m. ET
WASHINGTON (AP) -- Long before Samuel Alito takes a seat on the Supreme Court, his words precede him.
Assuming President Bush's nominee wins Senate confirmation, he will join seven colleagues on the bench who have already concurred with his opinions or scoffed at them, echoed his dissents or strongly disparaged them.
As a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, Alito has written hundreds of opinions or dissents in his 15 years on the federal bench. A few of those cases have gained a spot on the selective Supreme Court docket; even more have been affirmed or reversed through the prism of high court rulings on other appellate cases.
Alito has lost some close cases in the Supreme Court; two years ago he was soundly rejected in the case of a former elevator operator who was seeking Social Security disability payments.
Some observers contend it would be inaccurate to focus solely on Alito's won-loss record before the high court. The Supreme Court's motivation for choosing a case and its history with certain appellate courts must be factored in.
Judge Edward R. Becker, a Reagan appointee who has served with Alito on the 3rd Circuit, said of the reversals: ''We've all had our share.''
Alito's cases do provide some insight on what the justices thought about his judicial work. If confirmed in January, Alito would replace Justice Sandra Day O'Connor, who is retiring. Chief Justice John Roberts, also a former appellate judge, recently took his seat on the high court.
In at least three cases, the Supreme Court justices mentioned Alito by name and his writings in their citations, including the 1992 abortion case of Casey v. Planned Parenthood and a 2000 case involving Webster Hubbell, a former associate attorney general and friend of President Clinton.
In 2004, Alito wrote the majority opinion as the 3rd Circuit decided to let stand a death penalty sentence for a Pennsylvania inmate who argued that his lawyer had done sloppy work during the penalty phase of the trial.
Alito, sounding dismissive, rejected Ronald Rompilla's argument that his trial counsel had, in the judge's words, failed to ''take all the steps that might have been pursued by the most resourceful defense attorneys with bountiful investigative support.''
''But while we may hope for the day when every criminal defendant receives that level of representation, that is more than the Sixth Amendment demands,'' Alito wrote.
The Supreme Court, in a 5-4 vote, overturned the death sentence and ordered a new penalty trial. Justice David H. Souter, writing for the majority, sided with the defendant. He was joined by O'Connor, the swing vote in the case, and the court's liberal justices.
Souter wrote: ''We hold that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on.''
In a sharply worded dissent, Justice Anthony Kennedy agreed with Alito and the 3rd Circuit that it was right to uphold the state ruling.
''We have reminded federal courts often of the need to show the requisite level of deference to state court judgments,'' Kennedy wrote. ''By ignoring our admonition today, the court adopts a do-as-we-say, not-as-we do approach to federal habeas review.''
In 2003, the 3rd Circuit backed Pauline Thomas, a disabled former elevator operator who had applied for federal Social Security disability payments after her employer installed new elevators and eliminated her job.
The government had denied her claim for benefits.
''Sam wrote and I was with him on it,'' said Becker, who noted that elevator operators were rare in public places -- except at the Supreme Court, as Justice Antonin Scalia pointed out during the oral arguments.
''Sam got reversed on that nine-zip. Sam was for the little guy,'' Becker said.
In his 10-page opinion, Scalia disparaged the 3rd Circuit's logic in the case, and wrote, ''To generalize is to be imprecise. Virtually every legal (or other) rule has imperfect applications in particular circumstances.''
Evaluating Alito's opinions and dissents before the Supreme Court is far from an exact science. The high court considers only about 80 cases per term and the 3rd Circuit, which has jurisdiction for New Jersey, Pennsylvania, Delaware and the Virgin Islands, gets only a few in that group.
In 2003, the Supreme Court considered four cases from the 3rd Circuit, compared with 33 from the largest, the San Francisco-based 9th Circuit, and 10 from the Cincinnati-based 6th Circuit, according to the Harvard Law Review.
''The 3rd Circuit is a tiny circuit,'' said Tom Goldstein, a Washington lawyer who argues frequently before the high court.
The Supreme Court's reason for taking a case also is a factor. The court sometimes selects a case because an issue has been bubbling in lower courts and the justices decide it's time to weigh in.
''They're writing the law. It's very different from taking the lower court decision and beating on them for being stupid,'' said Stephen L. Wasby, a professor at the State University of New York at Albany who has analyzed how the 9th Circuit fared before the Supreme Court.
Frank Cross, a professor at the University of Texas who has examined the work of circuit judges, said Alito's opinions were seldom reviewed, in part because he wrote ''cautious, fairly modest opinions, not the extreme case the Supreme Court is going to take.''
Legal experts also cited what's known as ''circuit splits,'' in which the Supreme Court rules on one case but the decision reflects on a case from another circuit. This has happened a number of times with Alito's opinions and dissents.
Howard Bashman, a Philadelphia attorney whose Web blog focuses on the appellate courts, has analyzed how the 3rd Circuit has fared before the Supreme Court since 2000. His analysis cited several circuit splits in which the Supreme Court's ruling affirmed or rejected Alito's stand in a separate 3rd Circuit case.
''He's viewed as someone who does his best to apply the law fairly and intelligently,'' Bashman said. ''His record would be an admirable one.''
November 20, 2005
Connecticut
Special Education and Minorities
By AVI SALZMAN
IN the debate over the achievement gap between white and minority children in Connecticut, the overrepresentation of black and Hispanic children in special education classes is among the most sensitive subjects.
In communities throughout the state, minority children are carrying around labels, like emotionally disturbed and intellectually disabled (formerly called mentally retarded), that do not accurately describe them, special education experts said. They said the students are being placed in special education because educators are misinterpreting behavior problems and misunderstanding cultural differences.
The issue has forced some school districts to change the way they spend money on special education, pushed the state to increase monitoring of special education placement, and prompted administrators to train educators from districts where the numbers are particularly skewed on how to deal with racial and ethnic differences in the classroom.
"It's one of what I would call Connecticut's dirty little secrets in education," said John Brittain, a civil rights lawyer who worked on the landmark Connecticut education case, Sheff v. O'Neill, that addressed segregation in public schools.
Since the state began tracking the disproportions in 2002, the disparities in special education placement among different racial and ethnic groups have decreased in many school districts. But data compiled by the National Center for Culturally Responsive Educational Systems, an organization funded by the federal government, showed that the overall disproportion in the state grew worse from 1999 to 2004.
No one race should have a disproportionate number of disabled children, said Dr. Nancy Cappello, an education consultant for the State Department of Education.
"You would expect it to be proportionate to the demographics of the community," she said. "There should be no overrepresentation."
Experts who have studied the issue in Connecticut and throughout the country said disabilities are often misdiagnosed in minority children, especially boys. Children who are placed in special education for the wrong reasons face stigmas that are difficult to overcome, psychologists said.
"The child begins to see himself that way," said Dr. Jocelyn Mackey, an assistant professor of psychology at Southern Connecticut State University who has worked as a school psychologist in numerous Connecticut schools.
The issue of overrepresentation of black and Hispanic children has received particular scrutiny in some of the state's cities, but it also exists in smaller towns. This year, two municipalities, Norwalk and Windham, faced sanctions because their policies and procedures for placing children in special education did not pass muster with the state.
In Norwalk, black students made up more than 36 percent of the population of special education students in the 2004-5 school year, when the student body was about 25 percent black, according to statistics from the state education department.
In Windham, Hispanic students, who were 58 percent of the student body, made up nearly 64 percent of the special education population and nearly 70 percent of students classified as having a speech or language impairment.
Paul K. Perzanoski, the superintendent in Windham, said the town's numbers may seem skewed, but a review of the district's special education placements indicated that the vast majority were correct; high numbers, he said, do not necessarily mean that the placements were wrong. He said that some students had been misidentified and that the district was making progress in training teachers, improving assessments and intervening early in difficult cases.
Salvatore Corda, the Norwalk superintendent, was not available for comment.
In some districts the differences were even starker. In Hartford, for instance, Hispanics were more than four times as likely as whites to be identified as having a learning disability. In West Hartford, blacks were more than five times as likely as whites to be diagnosed as having an emotional disturbance.
Over all, blacks and Hispanics were 18 percent more likely than whites to land in special education in Connecticut in the 2004-5 school year, according to the state. Black students, in addition, were more than twice as likely to be identified as having an emotional disturbance or an intellectual disability than their white peers were.
By no means is this a concern only in Connecticut. Disproportions in the racial makeup of special education classes exist all over the country. Indeed, Congress made monitoring disproportions in special education one of the priorities in its reauthorization of the Individuals with Disabilities in Education Act last year.
Connecticut is not considered one of the states with the most egregious disproportions, said Troy R. Justesen, the acting director for the Office of Special Education Programs in the federal Department of Education. As of 2003, the most recent year for which federal data was available, the percentage of black students in special education in Connecticut was just under the national average. Connecticut, however, had a higher percentage of its Hispanic students in special education than all but five states.
These sorts of discrepancies first gained widespread attention about five years ago, when the Civil Rights Project at Harvard University released a study on the issue. A class action lawsuit against the state that was settled in 2002 also addressed some of these issues. Since then, overrepresentation has inspired robust debates among educators and inspired new policies that aim to eliminate the disproportions.
Experts point to a handful of reasons why the disproportions exist. Teachers, social workers and psychologists often have to make subjective decisions on whether a child should receive special education services. Those decisions, along with the tests children take to determine their intellectual abilities, offer numerous opportunities for bias to creep into the process, psychologists said. Educators, for instance, can misinterpret cultural cues as evidence of an emotional or intellectual disability, said Dr. Mackey of Southern Connecticut State University.
Some of the tests designed to determine a child's intelligence have also been culturally biased, various psychologists and policy makers said.
Merva Jackson, a social worker and the executive director of the African Caribbean American Parents of Children with Disabilities, a Hartford nonprofit group that advocates for parents and calls attention to overrepresentation, said she has seen cultural cues be misinterpreted. One mother, for instance, showed her a school evaluation that noted that her son liked to play with his cousin, whom the child described as "bad," Ms. Jackson said. The evaluator interpreted the statement as evidence that the mother had allowed the child to be exposed to "negative influences," not realizing that the child was using "bad" as a slang term that essentially meant "cool."
"It really started to speak loudly to the fact that people involved didn't understand our community," Ms. Jackson said.
Ms. Jackson, whose son was determined to be emotionally disturbed, started her organization in 1999 to help black parents in Hartford understand these issues.
For Hispanic students who are first learning English, problems with language sometimes are misinterpreted as disabilities, said Dr. June Malone, director of the early-learning division at Action for Bridgeport Community Development, an organization that provides Head Start programs. Dr. Malone said she has seen children who are "cognitively intact" graduate from her program and be placed in special education classes when all they needed was more language instruction. Statistics show blacks and Hispanics were more likely to be placed in various categories of special education in Bridgeport over the last three years.
"If a child speaks another language, they get placed in special education," Dr. Malone said.
Some said the real problems start early in a child's education. Jean Smith, a former social worker from Bridgeport, said attention deficit hyperactivity disorder was diagnosed in her daughter. She said her daughter and other minority students could remain in general education if their problems had been addressed earlier.
"Kids like her who are right on the borderline, if they had a little more attention and smaller class sizes, they wouldn't have to be in the system," she said.
Educators in urban districts, burdened with packed classrooms, often don't intervene early enough to deal with the problems of minority children, Dr. Malone said. As they approach adolescence, the students act out their frustration, she said. That can intimidate teachers.
"Many times, I believe the staff and faculty are afraid of boys of color," Dr. Malone said. "The simplest way to deal with it is to teach the kids who are easy to teach and warehouse the most difficult ones."
Once the child is referred to the committee, oversight is sometimes too lax, said Dr. Jay Gottlieb, a professor at Steinhardt School of Education at New York University who has studied racial disproportions in special education at schools in Connecticut.
"Committees have not done a good job of refining teacher referrals," Dr. Gottlieb said. "All too often, clinical teams' decisions simply support the teacher's judgment."
Indeed, overrepresentation of black and Hispanic children is the kind of issue that is so complex it can inspire 10 different kinds of conversations with 10 different experts.
And the solution? That's at least another 10 conversations.
The state's response to this issue was driven partly by a federal class action lawsuit settled in 2002. P. J. et al v. State of Connecticut, Board of Education, et al, brought by five children designated as mentally retarded and their families, compelled the state to closely monitor districts to see whether they were misdiagnosing illnesses in children or isolating mentally retarded children from their peers.
Bill Jordan, the father of Patrick Jordan (the P.J. in the suit), of West Hartford, said he thought the suit pushed the state to make changes, but added that overrepresentation is a problem "that's going to take a really long time to address."
Since the settlement, progress has been spotty, according to an advisory panel created by the settlement. The panel expressed skepticism about the state's commitment to the settlement's goals in its most recent report filed in September. It noted "uneven progress" in the state's most troubled districts and said the rest of the state was "moving too slowly in the desired direction."
State officials acknowledge that some districts have failed to make significant progress, but said the process of reforming the special education system has moved forward over the last few years. Completing the work is a long-term process.
"Some of it just takes time to turn that ship around," said George Dowaliby, the chief of the Bureau of Special Education at the state education department.
For the past four years, for instance, the state has held summits on racial disproportions in special education, inviting state and national experts to talk about methods of reducing the disproportions, Dr. Cappello said. About 30 districts send representatives to the summit, and the conference also includes teachers, legislators and family members of children in special education.
Districts that don't show improvements hear from the state. The education department tracks the number and type of special education placements throughout the state and red-flags districts where a statistical analysis indicates a problem. Those districts that appear to be placing too many minority children in special education classes are visited by monitors who examine the special education placement process for about a week. This year, the state is monitoring Bridgeport, Hartford, Stamford and New Britain.
Districts that continue to lag may be sanctioned, as is the case this year for Norwalk and Windham. Those two districts must spend 15 percent of the money they receive for special education services on early-intervention programs, such as literacy or behavioral-support programs.
Educators from problematic districts have another option, too. The state has begun holding a program for educators and administrators called Courageous Conversations on Race, in which participants discuss racial disparities in education.
Still, some think that the people most directly affected by this issue have not been invited into these discussions. Ms. Jackson, of African Caribbean American Parents of Children with Disabilities, said too few parents and teachers in urban districts realize that their children are overrepresented in special education. This summer, she held her own summit on minorities in special education.
"How are you making changes when the people on the front lines don't even know what's going on?" she asked. "We have to bring these things to the community level."
November 18, 2005
Extension of Patriot Act Faces Threat of Filibuster
By ERIC LICHTBLAU
WASHINGTON, Nov. 17 - A tentative deal to extend the government's antiterrorism powers under the law known as the USA Patriot Act appeared in some jeopardy Thursday, as Senate Democrats threatened to mount a filibuster in an effort to block the legislation.
"This is worth the fight," Senator Russell D. Feingold, a Wisconsin Democrat who serves on the Judiciary Committee, said in an interview.
"I've cleared my schedule right up to Thanksgiving," Mr. Feingold said, adding that he was making plans to read aloud from the Bill of Rights as part of a filibuster if necessary.
The political maneuvering came even before negotiators for the House and Senate had agreed on a final deal to extend the government's counterterrorism powers under the act.
With a tentative deal in place on Wednesday, Congressional negotiators had been expected to reach a final, printed agreement by early Thursday for the full House and Senate to consider. But despite minute-by-minute updates about a possible conclusion, the day passed on with no final agreement, causing no shortage of nervousness among Bush administration officials and Republican supporters of the tentative deal.
By Thursday evening, officials said negotiators had reached what amounted to an impasse for the day, as those from the Senate pushed for further civil rights safeguards that were seen as unacceptable to House leaders. Talks are expected to pick up again on Friday, officials said.
The tentative deal reached by negotiators would make permanent 14 of the 16 provisions of the law that are set to expire at the end of the year. The remaining two provisions - related to government demands for records from businesses and libraries and its use of roving wiretaps - would have to be reconsidered in seven years, as would a separate provision on taking aim at people suspected of being "lone wolf" terrorists.
But in the eleventh-hour negotiations to complete the deal, Congressional leaders discussed changing some crucial elements of the agreement in response to concerns from lawmakers, officials said. One proposal would have lowered the "sunset" on the three investigative provisions from seven years to something closer to the four years approved by the Senate in its version of the bill earlier this year.
In a letter Thursday, a bipartisan group of six senators said the tentative deal had caused them "deep concern" because it did not go far enough in "making reasonable changes to the original law to protect innocent people from unnecessary and intrusive government surveillance."
Reflecting the political breadth of concerns about the law, the letter was signed by three Republicans - Senators Larry E. Craig, John E. Sununu and Lisa Murkowski - and three Democrats - Senators Richard J. Durbin and Ken Salazar and Mr. Feingold.
The group called for tighter restrictions on the government's ability to demand records and its use of so-called "sneak and peak" warrants to conduct secret searches without immediately informing the target, among other measures.
"We have worked too long and too hard to allow this conference report to eliminate the modest protections for civil liberties that were agreed to unanimously in the Senate," Ms. Murkowski, of Alaska, said in a separate statement.
"There is still time for the conference committee to step back and agree to the Senate's bipartisan approach. If the conference committee doesn't do that, we will fight to stop this bill from becoming law."
Republican leaders said they remained confident that a deal would be worked out that would accommodate the newly raised concerns from members of both parties. But the late maneuvering could thwart the leaders' hopes to have a deal in place before Congress breaks for Thanksgiving next week.
The Bush administration, which saw the negotiators' tentative agreement as a strong endorsement of its demand for tough antiterror tools, has made the reauthorization of the act one of its top legislative priorities, and officials have been pushing for a quick resolution to avoid hitting a deadline at the end of December, when several major surveillance and investigative powers in the law would expire.
November 22, 2005
November 22, 2005
Crackdown Deters Day Labor Employers
By PETER C. BELLER
EAST HAMPTON, N.Y., Nov. 21 - The railroad station here looked different on Monday. The crowd of 20 or so Hispanic day laborers was gone, having abandoned the sidewalk in front of the station where the workers had long congregated on weekdays to wait for a job to drive up.
They were the targets of a crackdown on the hiring of illegal immigrants begun by the East Hampton Village police on Nov. 14. Lacking the power to enforce immigration laws, the police instead began reporting the license numbers of cars and trucks that picked up day laborers to state and federal agencies for investigation.
A similar police crackdown 12 days ago in the parking lot of a 7-Eleven store about 45 miles away in Farmingville, N.Y., which included several arrests for trespassing, was not as successful. Day laborers simply moved to the sidewalk.
Gathering spots for day laborers are found across Long Island and have long been a sore point among residents. This latest police tactic - in effect, scaring away would-be employers - appears to be having the desired effect here.
In East Hampton, a 21-year-old Ecuadorean laborer said in an interview on Monday that he had been working up to seven days a week until the crackdown but was hired for only one day last week while waiting for work at the train station.
Sitting on a bench with two friends in front of Bucket's Deli on Newtown Lane, the worker, who said he was here illegally, said that an anxious employer, who had picked him and some friends up at the station, asked them to get out of the car after the police began to follow the vehicles.
The worker said that many of the day laborers who once gathered at the station were congregating elsewhere on Long Island to find work.
That is the result Chief Gerard Larsen Jr. of the East Hampton Village police had hoped for when he began his campaign to end the daily gathering at the station, on Railroad Avenue. "I think that they've stopped coming out because they know they're not going to get work," Chief Larsen said last week.
Unlike Farmingville, where there has been longstanding tension over the presence of illegal immigrants, the Hamptons have generally been tolerant of day laborers, who perform whatever unskilled jobs the large service industry here requires.
But East Hampton Village decided to discourage day laborers from gathering after complaints from residents and after an undercover operation during the summer that, while failing to find any evidence of extortion against the laborers, did provide proof that immigration, tax and labor laws were being violated.
Chief Larsen said he decided to discourage contractors by announcing that his officers would forward the license plate numbers of cars and trucks seen picking up day laborers to the Internal Revenue Service, United States Immigration and Customs Enforcement and the New York State Department of Labor.
"You cannot criticize the day laborers," Chief Larsen said. "They're trying to make a living. By going after the employers it seems right."
Contractors in search of day laborers stopped pulling up to the train station two days after the police began conspicuously recording license plate numbers. The day laborers stopped showing up soon afterward.
A spokeswoman for the State Labor Department said that it would not investigate based solely on a license plate. Mark Thorn, an immigration spokesman in New York, said his agency's priority is illegal aliens who commit other crimes.
Except for several letters in the local newspaper criticizing the new police policy, reaction has been overwhelmingly favorable, said Larry Cantwell, the village administrator.
"People in the community thought it was long overdue," said Mr. Cantwell, noting that as many as 100 laborers a day waited for work in the summer. "We're not going to solve the national issue of immigration. We're simply trying to deal with this at one location where we feel it's gotten out of control."
While there had never been any arrests at the station, town officials say there had been a steady stream of complaints from residents about men urinating and whistling at women, and about the public flaunting of tax and immigration laws. Some contractors, unhappy with competitors who hired the laborers, have been thanking him, Chief Larsen said.
Things have not gone as smoothly in Farmingville, where employees at the 7-Eleven at Horse Block Road and North Ocean Avenue called the police early this month because day laborers were spending hours in the parking lot waiting for contractors.
About a dozen workers were gathered on the sidewalk in front of the Farmingville store at 8 a.m. on Monday while others stood in twos or threes scattered up and down Horse Block Road. On the corner two white residents carried signs urging the deportation of illegal immigrants.
Although a store manager would not answer questions on Monday, Margaret Chabris, a spokeswoman for 7-Eleven Inc. in Dallas, said that Greg Kaloustian, the local owner, inherited the laborer gatherings when he bought the franchise in May.
After 7-Eleven representatives met with Latino advocates and police and county officials, signs were posted at the store in English and Spanish warning people not to loiter for more than 30 minutes. A security guard was also hired to police the parking lot, at a busy rush-hour intersection, Ms. Chabris said.
One laborer, a 28-year-old from Mexico City, said would-be employers had become wary of looking for workers near the store. His friend, 22, also from Mexico City, agreed.
Then a U-Haul truck pulled up and several other men waiting for work scrambled toward it and then climbed inside.