- The Washington Times - Monday, October 1, 2001

The Supreme Court returns today to a docket of cases worlds removed from the new national concerns about thwarting terrorism.
While the president and Congress prepare for a prolonged struggle that already is raising civil liberties questions, justices remain in a time warp of conventional appeals that could make the 2001-02 term the year of the child.
Cases already before the court deal with the constitutionality of school vouchers for thousands of children, protection of children from harmful Internet images and sexual predators, student privacy during the grading of papers, and mandatory drug testing for participants in high school choir, band and other "competitive" extracurricular activities.
Steven R. Shapiro, legal director of the American Civil Liberties Union, believes it is lucky that the court is not presently considering the types of immigration and national security cases raised by the Sept. 11 terror attacks or the hunt for co-conspirators.
Mr. Shapiro said the ACLU does not represent any of the persons swept up on immigration charges or as witnesses, nor has it been asked to do so.
"Future cases on encryption, search and seizure, and profiling of suspects may touch more closely to where the raw nerve is," he said, predicting more inflamed rhetoric.
While Fourth Amendment search-and-seizure appeals dominated last term, the current menu of cases involves children, the death penalty, HMO disputes, affirmative action, public housing issues, landowner property rights and one more round of the Microsoft case.
The high court so far has accepted 49 appeals, with decisions expected by June. That is three more than were accepted at this point last year.
Today's first order of business will be disposition of more than a thousand requests to be placed on that roster, all of which were considered during summer recess.
First up for argument today is a controversy involving a federal prisoner's right to sue a private company for its conduct while under contract to the Federal Bureau of Prisons. Correctional Services Corp., which operates private prisons, claims it should enjoy the same immunity to lawsuits while acting for the federal government as the law provides to the government itself.
While serving an 18-month sentence for securities fraud in a New York halfway house, John Malesko says, he had a heart attack because a CSC guard made him walk up five stories instead of letting him use the elevator.
Most of the cases with the broadest public interest will be argued later in the term, so early attention will involve efforts to get cases accepted for full review.
One of the more interesting is the school drug case from Pottawatomie County, Okla., where the parents of Lindsay and Lacey Earls sued Tecumseh High School for authorizing urinalysis of students in the choir, band, color guard, Future Farmers of America, Future Homemakers of America, the academic team and pom pom squad. The Supreme Court has approved such tests solely for school sports.
A decision on whether to hear the Microsoft case could come as early as one week from today. The Bush administration, which has abandoned earlier efforts to break up Microsoft, is on record opposing what it calls "piecemeal" high court review of the case.
In this round of appeals, Microsoft lawyers asked the justices to overrule a unanimous decision by the full U.S. Circuit Court of Appeals for D.C. and find that the trial judge's contacts with reporters justify throwing out all his findings of fact.
Another pending plea for review is a request by Yonkers, N.Y., to be freed from federal orders requiring white families to move into black neighborhoods in order to be included in a subsidized housing program.
The vouchers case will test whether public money allocated for tuition at any elementary or secondary school is unconstitutional if used at parochial schools. Federal grants and loans have been used at religious colleges at least since World War II, but are under attack at the elementary and secondary level.
"This is not about funding religion, but providing parents with an opportunity to select the kind of education they prefer. Religious schools should not be singled out and targeted for exclusion in this arena," said Jay Sekulow, chief counsel of the American Center for Law and Justice.
"Public schools unify, vouchers divide," said Sandra Feldman, president of the American Federation of Teachers, which calls vouchers blank checks for religion.
"We've always said we need a strong public school system in America and at a time like this, we need it even more than ever," Ms. Feldman said.
The key death penalty case renews a 1989 appeal that "evolving standards of decency" here and abroad require an end to executing murderers who are mentally retarded. Daryl James Atkins, 23, was sentenced to die for the 1996 murder of Eric Nesbitt, 21, who was kidnapped and shot to death after being forced to withdraw cash from an automated teller machine.
Vivian Berger, an ACLU general counsel, said last week there are five "isolationist votes" on the court justices who will ignore standards of other nations so ACLU legal strategy focuses on "an extremely strong national consensus." Eighteen states ban execution of "mildly retarded" prisoners, those with IQ of about 59 to 75. Profoundly retarded people are generally not tried.

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