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Posts Tagged ‘Sotomayor’

In what seems to be a disturbing trend, yet another high school student was punished by school officials for comments made on the internet about the school officials. In Doninger v. Niehoff, the 2nd District Court of Appeals held that the school officials were within their rights to discipline a student for comments made on her blog about the school officials by prohibiting her from running for student council in the next election (she was already an officer). The rational was the “disruption” the comments could cause at the school. The comments at issue were (1) calling the school officials “douchebags,” and (2) encouraging students to email the officials to protest the school’s cancelling of an annual event which she worked very hard to organize. This hardly seems like she was attempting to incite a riot or promote criminal activity. What it sounds like to me is ineffective school officials flaunting their authority and striking out at a high school student – for the simple reason that they could. The discipline was not an attempt to prevent a disruption, that was caused when the school officials cancelled the event, the  so-called discipline was simply an act of revenge.

What is most troubling in this case is that the three-judge panel (which incidentally included Sotomayor) actually stated: “vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school.” Clearly, the judges are aware of the First Amendment. Unfortunately, the judges believe that minors who attend public school have no rights under it.  Why would minors be treated any differently than adults in this type of situation? It is the speech, not the speaker that should be the focus of the inquiry.

What is the real lesson here? In this case, what the school officials have taught these students is that the government (school officials and the court system) can arbitrarily ignore the rights granted to individuals in the Constitution and that the best way to handle disagreements is to get revenge. The students here are learning that there is no right of free speech for them. They are learning that there really is a big brother. I’m ashamed of the school officials and disappointed in the judges. This girl should be given an award for caring so much about school events and school government that she was willing to speak out passionately and seek redress for what she viewed as an unfair act by the officials. After what she’s been through, I doubt she’ll believe she can make a difference. (Either that, or she’ll wind up going to law school.) I think the irony that the punishment was to prevent her from participating in school government is lost on the school officials and judges in this case. Maybe they should take a remedial class in Government 101.

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On December 11, 2009, a Motion to Reargue Appeal was filed in the New York Court of Appeals (highest court in New York – like a Supreme Court in other states) in the case of Goldstein v. New York State Urban Development Corporation, No. 178 (November 24, 2009) which decision had upheld the condemnation of a number of residential and commercial properties in order to make way for a private corporation to develop the land for high-end residential purposes as well as the building of a sports stadium. The condemned property was claimed to be “blighted” in a study introduced as evidence in the case (which label the residents and business owners who live there would most certainly take issue). The court indicated that the condemnation was permitted under New York law under the guise of economic development. You will remember that the 5th Amendment of the U.S. Constitution states that private property cannot be taken by the government for public use without just compensation. The 14th Amendment expands this limitation to state and local governments. Typically, this power of condemnation may only be exercised through delegation from the appropriate legislature to either an agency (for public parks, etc.) or a private corporation (for purposes of providing a public service, such as utilities or transportation).  What worries me, besides the very poorly worded opinion in Goldstein, is that the New York Court of Appeals seems to be taking the much-maligned approach in Kelo v. City of New London, 545 U.S. 469 (2005) a step further away from the Constitution.

In Kelo, a U.S. Supreme Court case, a bare majority of 5 Justices — Stevens, Kennedy, Souter, Ginsberg, and Breyer, ruled that private property could be taken for redevelopment by a private corporation when new jobs and taxes are created.  O’Connor, Rehnquist, Scalia, and Thomas dissented.  Kelo had further expanded the holdings in two previous cases, Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which allowed condemnation to eliminate “blight.”  The pathetic end to this matter outside of the court is that in November 2009, Pfizer, the private corporation whose promises prompted the condemnation action, announced that not only would it not be developing the property, but that it would be closing the existing New London facility.  Thus, the promised jobs and taxes that were the stated reason for people being removed from their land will never come about anyway.  Talk about adding insult to injury.

In response to Kelo, in 2006, an executive order was issued limiting the federal government’s use of condemnation proceedings  …for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.”  Although this only applied to federal proceedings, many states did change their condemnation laws to follow more closely the Executive Order than the Kelo Supreme Court ruling.  Obviously, New York was not one of them.

If this Goldstein case does make its way to the U.S. Supreme Court, what would be interesting to see is whether Souter’s replacement, Sotomayor, sides with the previous dissent making way for an effective reversal of Kelo?  I have no doubt that the framers of the “takings” clause of the Constitution did not intend it to be used to force landowners off their land for the benefit of private corporations.  What will Sotomayor do if given the chance?

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