Flores v. Arizona Sent back to 9th Circuit

(AZCentral) The U.S. Supreme Court took a major step toward ending a 17-year legal battle Thursday, saying lower courts made a mistake by focusing too much on forcing Arizona to spend more money to help students who haven't yet learned to speak, read or write English.

The court voted 5-4 to send the Flores vs. Arizona case back to the 9th U.S. Circuit Court of Appeals.

The instructions are to consider whether Arizona has complied with civil-rights law by improving both English-learner programs and K-12 education overall.

The decision stopped short of dismissing the case but could hand back to Arizona lawmakers the power to determine how much is spent on English instruction and how such students are taught.  

The ruling also removes the threat of $2 million-a-day fines that a U.S. District Court judge threatened to impose if Arizona did not fully implement and fund a language-learners program.

The majority opinion, written by Justice Samuel Alito and joined by conservative colleagues, sent a strong message to lower courts by questioning why schools and states should remain under the direction of federal courts for so many years.

The Court of Appeals "improperly substituted its own policy judgments for those of the state and local officials entrusted with the decision," Alito wrote.

His opinion raised doubts about whether the Flores case, originally filed in 1992 against the Nogales Unified School District, should still apply to the entire state.

Still, the high court's decision leaves room for future arguments over how much progress the state has really made with English learners. For years, such learners have lagged behind their academic peers beginning in middle school.

Attorney Tim Hogan, who represents the plaintiffs in the lawsuit, the Flores family of Nogales, said that although he is disappointed in the Supreme Court's reversal of the Appeals Court, which found that Arizona's funding was inadequate, its remanding of the case to lower courts keeps the legal battle alive.

"This will give us an opportunity now to fully test the existing program that's in place for English-language learners in Arizona and whether or not that program is working," said Hogan, of the Arizona Center for Law in the Public Interest.

The majority opinion was issued by Alito, Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas. Justice Stephen Breyer wrote a dissent and was joined by Justices Ruth Bader Ginsburg, John Stevens and David Souter.

In weighing the case, the Supreme Court considered the fact that Flores was originally based on the Equal Education Opportunities Act of 1974. That law requires states to take "appropriate action" to help kids still learning English keep up with their academic peers. But the Supreme Court emphasized that the federal civil-rights law also entrusts states to choose how to meet the obligation.

The decision stated that the lower courts concentrated too narrowly on how much the state spent to help language learners, adding that increases in overall school funding also should be considered in determining whether the state complied with federal law.

The justices stopped short of weakening the Equal Education Opportunities Act, as some civil-rights attorneys feared. But the court said that complying with the No Child Left Behind Act of 2002 did help to satisfy the requirements in the 1974 law to take "appropriate action" to help students overcome language barriers.

The court reversed the decision of the federal Appeals Court that Arizona needs to improve the way it funds language instruction and sent the case back with strong directions to reconsider how much has changed in Arizona since an earlier decision in 2000. The state's changes include an increase in funding for English-language instruction and improvements in the methods used to instruct the students, including reforms made through Arizona's compliance with No Child Left Behind.

Now, attorneys will move from arguments over how much money Arizona spends on language instruction to the quality and outcomes of that instruction. The decision does not lead to a rehash of old arguments but a hashing out of new arguments, said Clint Bolick, a constitutional expert and litigation director for the Phoenix-based Goldwater Institute.

"The gist of the decision is that the world in Arizona has changed," Bolick said. "What the court is telling the (lower) court to do is determine if there is a violation of federal law based on the reality in Arizona in 2009."

In his dissent, Justice Breyer concluded that the evidence showed the Appeals and District courts did consider all the changed circumstances in Arizona and ruled correctly.

"The lower courts did 'fairly consider' every change in circumstances that the parties called to their attention," Breyer wrote. "The record more than adequately supports this conclusion."

He said the majority was wrong to separate the issue of how Arizona funds its language programs and the content and success of those language programs.

"The court cannot sensibly drive a wedge (as it wishes to) between what it calls the 'incremental funding' issue and the uncured failure to comply with the requirements of federal law," Breyer stated.

The majority's decision "risks denying schoolchildren the English-learning instruction necessary 'to overcome language barriers that impede' their 'equal participation,' " Breyer added.

Thursday's ruling was also a legal victory for Arizona Superintendent of Public Instruction Tom Horne, who, along with Republican lawmakers, petitioned the Supreme Court to weigh in on the case.

"This is a major step to stop federal trial judges from micromanaging state education systems," Horne said. "This affirms that important value that we the people control our government and our elected representatives and are not ruled over by an aristocracy of lifetime federal judges."

Scott Drake interviews Clint Bollick. He serves as the director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.

U.S. Supreme Court Declares Strip Search Of 13-Year-Old Student Unconstitutional

The U.S. Supreme Court today ruled that school officials violated the constitutional rights of a 13-year-old Arizona girl when they strip searched her based on a classmate's uncorroborated accusation that she previously possessed ibuprofen. The American Civil Liberties Union represents April Redding, the plaintiff in the lawsuit, whose daughter, Savana Redding, was strip searched by Safford Middle School officials six years ago.

"We are pleased that the Supreme Court recognized that school officials had no reason to strip search Savana Redding and that the decision to do so was unconstitutional," said Adam Wolf, an attorney with the ACLU who argued the case before the Court. "Today's ruling affirms that schools are not constitutional dead zones. While we are disappointed with the Court's conclusion that the law was not clear before today and therefore school officials were not found liable, at least other students will not have to go through what Savana experienced."

Savana Redding, an eighth grade honor roll student at Safford Middle School in Safford, Arizona, was pulled from class on October 8, 2003 by the school's vice principal, Kerry Wilson. Earlier that day, Wilson had discovered prescription-strength ibuprofen – 400 milligram pills equivalent to two over-the-counter ibuprofen pills, such as Advil – in the possession of Redding's classmate. Under questioning and faced with punishment, the classmate claimed that Redding, who had no history of disciplinary problems, had given her the pills.

After escorting Redding to his office, Wilson demanded that she consent to a search of her possessions. Redding agreed, wanting to prove she had nothing to hide. Wilson did not inform Redding of the reason for the search. Joined by a female school administrative assistant, Wilson searched Redding's backpack and found nothing. Instructed by Wilson, the administrative assistant then took Redding to the school nurse's office in order to perform a strip search.

In the school nurse's office, Redding was ordered to strip to her underwear. She was then commanded to pull her bra out and to the side, exposing her breasts, and to pull her underwear out at the crotch, exposing her pelvic area. The strip search failed to uncover any ibuprofen pills.

"The strip search was the most humiliating experience I have ever had," said Redding in a sworn affidavit following the incident. "I held my head down so that they could not see that I was about to cry."

The strip search was undertaken based solely on the uncorroborated claims of the classmate facing punishment. No attempt was made to corroborate the classmate's accusations among other students or teachers. No physical evidence suggested that Redding might be in possession of ibuprofen pills or that she was concealing them in her undergarments.

Furthermore, the classmate had not claimed that Redding currently possessed any pills, nor had the classmate given any indication as to where they might be concealed. No attempt was made to contact Redding's parents prior to conducting the strip search.

In response to today's ruling, Redding said, "I wanted to make sure that no other person would have to go through this, so I am pleased by the Court's decision. I'm glad to have helped make students feel safer in school."

The case, Safford Unified School District v. Redding, was appealed from the U.S. Court of Appeals for the Ninth Circuit, which found the strip search to be unconstitutional. A six-judge majority of the appeals court further held that, since the strip search was clearly unreasonable, the school official who ordered the search is not entitled to immunity. In today's Supreme Court decision, despite deeming the strip search of Redding unconstitutional, the Court found that the school officials involved are immune from liability. The decision leaves open the possibility, however, that the Safford Unified School district could be held liable.

"Neither the Constitution nor common sense permits school officials to treat a strip search the same as a locker or backpack search," said Steven R. Shapiro, the ACLU's national Legal Director. "Today's ruling eliminates any confusion that school officials may have had about this seemingly obvious point."

The ACLU and ACLU of Arizona were joined in the case by Bruce Macdonald, with the law firm McNamara, Goldsmith, Jackson & Macdonald, and Andrew Petersen, with the firm Humphrey & Petersen.

In addition, a broad constellation of adolescent health experts and privacy rights advocates filed friend-of-the-court briefs in support of Redding, including the National Education Association, National Association of Social Workers (NASW), CATO Institute, Rutherford Institute, Goldwater Institute and Urban Justice Center, among others.

The decision is available online at: www.aclu.org/drugpolicy/search/40031lgl20090625.html

The ACLU's brief in the case is available online at: www.aclu.org/scotus/2008term/saffordunifiedschooldistrictv.redding/39160lgl20090325.html

Scott Drake interviews ACLU attorney Adam Wolf.

Obafemi Ayanbadejo Banned Substance Lawsuit

(AZ Central) Femi Ayanbadejo knows that he messed up.

But he also wants people - especially those in the Cardinals organization - to know that he didn't lie to them, and that he didn't intentionally take a banned substance before he tested positive for one in January 2007.

That was shortly after the last of his three seasons as a fullback for the Cardinals. He learned of the positive test in April and was released in June. He then signed with Chicago, where he served a four-game suspension before being cut by the Bears.

He hasn't played in the NFL since.

• ALR Industries, which manufactures sports supplements, recently settled a lawsuit Ayanbadejo brought against the company, claiming it did not properly label a supplement called Max LMG which resulted in his failed test.

  "The performance-enhancing-drug stigma that can go with an athlete is pretty bad," he said.

  "The No. 1 thing for me . . . I really believe the Cardinals thought I was on steroids. And I think my teammates did.

  "I always went out of my way to eat organic. I would bring my own food on the road and to practice, and this made me look like a fraud.

  "I just want them to know that I told them the truth and that I'm an honest person."

  Attorneys for ALR Industries contended the product was properly labeled.

  Ayanbadejo and his attorney, Jim Miller, argued a chemical in the supplement metabolizes in the body and produces the banned substance.

  While he is keeping financial details of the settlement confidential, Ayanbadejo is speaking out about his experience because he believes the supplement industry needs to be more closely regulated and that high school, college and even NFL players may unwittingly take substances that could get them in trouble or, worse, do harm.

  "I've been using supplements since I was 16," Ayanbadejo said. "I knew the basic rules of the NFL drug-testing policy and in general what was on the banned list.

  "I got so comfortable in making my own decisions and doing my own research that I think I was overconfident in my ability to assess the products.

  "I take responsibility because I could have done more . . . ALR needs to take responsibility for their labeling and for their marketing.

  "Our main point is the manufacturer needs to be more transparent. There needs to be more disclosure to let the consumer know the road they're going down."

  ALR admitted no wrongdoing in the settlement and has filed a defamation suit against Ayanbadejo, which Miller said is "going nowhere."

  Neither, however, is the stigma.

  "Once your name goes across that ESPN ticker saying you've been suspended . . . there's no way I can match the reach that has," Ayanbadejo said.

  Meanwhile, he hasn't given up on his career.

  Now 34, he was drafted by San Francisco's UFL franchise - coached by former Cardinals coach Dennis Green.

  "I'm a positive thinker," Ayanbadejo said. "I didn't envision my NFL career ending on this note, but I believe I have a lot left in the tank. I'm going to play for Denny and I hope to show that I still have my abilities."

  Scott talks with his attorney Jim P. Miller in El Cajon.

Dog Regulations Run Amok? The CDOC vs The City of Los Angeles

No area of the law or regulation creates more controversy and passion then anything linked to dogs, cats and other domestic pets and the lawsuit brought by Concerned Dog Owners of California (CDOC) against the City of Los Angeles over their mandatory spay and neuter regulations is no exception. Last year they filed a lawsuit to over turn the mandatory spay and neuter regulations imposed on all dog owners in the City, in which set dates for spay and neuter are established, civil and administrative penalties are outlined and entire categories of dog breeders, owners and hobbyists now fall under increasingly strict laws and oversight.

The questions raised in the suit look at the constitutional right of free association, the body of law in California regarding the right of the state to regulate animal ownership and standards and whether these regulations over reach in their goals to reduce the number of dogs and cat’s euthanized in shelters through out the city. We asked Attorney John Jensen, who is bringing this case to join us in studio along with Cathie Turner, the chairperson of CDOC to explain why they brought this suit, the perceived issues at stake and the relative merits of their case. We are also joined by David Frie, the voice of the annual Westminster Kennel Club dog show to discuss the historic roles of breed and kennel clubs in protecting dogs, avoiding needless euthanization of animals as well as a look at some of the issues surrounding this growing national movement to increasingly regulate dog ownership.

In this three video series, the Legal Broadcast Network examines an area of the law that is growing in importance and relevance to not only lawyers, but law makers, dog owners and breeders, that being the move by certain political and special interest groups to make mandatory spay and neuter laws part of the normal process of animal regulation in cities and states across the United States. While we touch on the motivation of these laws and the powerful lobby’s behind them in this series, we are more concerned at the network with the legal discussion of whether or not these laws, while well intended might in fact infringe on the rights of ordinary dog and pet owners to decide whether or not they wish to spay or neuter their animals.

It might seem like a fringe or novelty area of the law, but over 150 of the law schools in the United States now teach on animal law and given the American love affair with their pets, and the passionate advocacy on both sides of these issues, this looks to be a topic that is increasingly litigated in local, state and federal courts for years to come.

Video number one is Attorney John Jensen on the legal argument of the specific case of CDOC vs The City of Los Angeles.

Video number two is Cathie Turner, chairperson of Concerned Dog Owners of California discussing the legislative battle they are waging against the State of California and Senate bill 250 and their contention that these laws do not in fact save dogs from needless deaths, but in addition add substantial compliance and administrative costs to cities and towns at the very time when they are struggling with budget issues.

Video number three is David Frei of the Westminster Kennel Club, a long time dog breeder and advocate of responsible dog ownership discussing how mandatory spay and neuter laws can have unitended negative consequences on the dogs, responsible breeders and actually encourage “puppy mills” which is something breed clubs work to eliminate

Jack Ballentine "Murder For Hire"

Jack Ballentine became a Phoenix police officer in 1978 and quickly rose to the top as one of the world’s most successful undercover operatives. His specialty: posing as an undercover hit man. None of the people who hired him had any inkling that he was actually a cop, and his work led to a perfect rate of twenty-four convictions out of twenty-four indictments on murder conspiracy charges. 

Murder for Hire is Ballentine’s story. He worked with criminals of all sorts, from vengeful spouses and partners to the criminally insane, all who had one thing in common: the desire to have someone killed. Ballentine could change his character at the drop of a hat, often imitating characters and “bad guys” from television and movies. In assuming an alternate identity and developing a reputation among the Phoenix underground---bikers, strippers, junkies, and thugs---he developed an intricate network of sources who fed him work and kept him extremely busy. All the while, the author strove forthe semblance of a normal life and balanced his rough-and-tumble career with a new wife and stepson.His story is a unique look at how law enforcement delves into the heart of the criminal world.

Book signing Saturday June 20th at Barnes and Noble in Mesa, AZ 2pm.

Dana Point Center at ValVista and Baseline Roads.

Scott Drake interviews Jack Ballentine