On an April 21 segment of NPR’s The Takeaway, Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, talked about two civil rights cases heard this week by the Supreme Court. The Justice Department filed amicus curiae briefs in each case.
The first case, Safford Unified School District v. Redding, involves the strip search of a young girl by school administrators who had received a tip that she was distributing ibuprofen, but turned up nothing in their search of the honor student. The second case, Ricci v. DeStefano, relates to affirmative action in practice in the city of New Haven, Connecticut. The Court heard arguments on behalf of firefighters (all white and one Latino) who believe that the city violated their rights to equal opportunity for work by eliminating a test that put firefighters who passed the exam on track for promotion.
“What struck me as being common to both of [the briefs] and both of these cases is that there’s a real Obama-esque attempt to give each side its due, to find a middle ground, to find a common ground,” Yoshino said. “It really is a very wise, sensible, intelligent reading of the law and in both cases, they kind of split the difference.”
Yoshino said the government’s position in Redding is that based on the facts of the case, school administrators cannot strip search a 13-year-old girl but should not be punished because the law has not been clear. “Essentially what the Obama administration is saying is ‘let’s forget the past and make the law clear going forward and then you have to abide by the law and so do all other schools.’” With respect to DeStefano, Yoshino said the government’s position is that the case involves a factual question and should be remanded. “Whether or not the city of New Haven is telling the truth is a factual question, not a legal question, so they are saying to send it back to the jury,” Yoshino said.
Yoshino is the author of Covering: The Hidden on Assault on Our Civil Rights (Random House 2006), which was recently selected by Pomona College as the first-year book to be read by the entire incoming class of 1,000 students for the 2009-10 academic year. Covering was also chosen as the first-year book for the 2008-09 academic year at the University of North Carolina, Virginia Commonwealth University, and the University of Richmond.