Cases by Issue - Miscellaneous

Doe v. Chao - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Doe v. Chao

Media File:

02-1377_20031203-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jack W. Campbell Iv

Chief Justice Rehnquist: We'll hear argument next in No. 02-1377, Buck Doe v. Elaine Chao.

Mr. Campbell.

Mr. Iv: Mr. Chief Justice, and may it please the Court:

In this case, it is undisputed that petitioner Buck Doe suffered an adverse effect, the emotional distress typical of a privacy invasion caused by the Department of Labor's intentional and willful violation of the Privacy Act.

The only question is whether under these circumstances, petitioner is entitled to recover the Privacy Act's modest $1,000 statutory damages remedy.

Justice Souter: Before we go further, could you help me out on one thing?

You spoke of the modest $1,000 recovery.

The argument is made on the other side that, in fact, it would be $1,000 for every publication in this case, for example, for every caption of a... of... of an order that went out, to everyone to whom that order was sent, so that it would not be $1,000, it would be many, many thousands.

Is that the proper construction of the statute?

Mr. Iv: The answer to that is no, Justice Souter, and let me answer that in at least two ways.

First of all, the District of Columbia Circuit has already held that the number of... that the $1,000 is key to each individual and not to the number of disclosures.

For example, in the Tomasello case in the D.C. Circuit, there was a simultaneous disclosure of information about a single individual to some 4,000 recipients.

That court held--

Justice Souter: Okay.

Mr. Iv: --and I think correctly, that that would be considered one disclosure under the act and, thus, the individual would be entitled to only a single $1,000 recovery.

Justice Souter: What if... what if there had been an initial disclosure and he had protested it?

He said, you're violating the statute when you do this and they did it again.

Would that be a separate offense?

Mr. Iv: That's a closer question... it... because then you... you've got the... the temporal separation that did not exist in the Tomasello case.

Justice Souter: Yeah, but you'd have temporal separation if there were 10 pleadings over a period of 10 months.

Mr. Iv: But--

Justice Souter: And I take it in that case you're saying, no, there would still just be a... a... a one violation and... and the maximum recovery, at least under this provision, would be 1,000.

Mr. Iv: --I... I... I think that's right, Justice Souter, and I want to make clear too that for each of those disclosures you're describing, there would have to be an adverse effect described and... and a causation element met in each of those in any case before you even got to the question.

Justice Breyer: But suppose the IRS--

Justice O'Connor: --But that's so easy to establish, as shown here.

I mean, it bothers me that somebody else knows my Social Security number.

You don't think that's a realistic reason for not assuming application of the statute, do you?

Mr. Iv: I... if I understand your question, Justice O'Connor, the answer is, yes, there is a real harm suffered here, and adverse effect is not a meaningless standard.

And in this case, you don't just have a situation in which Buck Doe... it's obviously a pseudonym... just alleges, I was harmed.

This is a case in which he submitted an affidavit, and more importantly, testified in open court as to the severity and veracity of his emotional--

Justice O'Connor: Well, but wouldn't--

Mr. Iv: --and was cross-examined.

Justice O'Connor: --wouldn't every person who wanted to make such a claim make similar allegations?

Is a class action a reasonable possibility in a case like this?

Mr. Iv: Let me answer both parts of your question.

As to the first part, I... I don't think we can presume that plaintiffs are going to make up an adverse effect.

They are certainly under the obligations to testify truthfully, and in this case, the Government had every opportunity that... to... and did cross-examine Mr. Doe as to the veracity of his adverse effect.

The magistrate found as a matter of fact he did suffer an adverse effect, the district court adopted it and the Government never appealed that finding, so whatever arguments they have at this point are gone.

Second part of your question, class actions.

That's certainly the parade of horribles that the Government is trotting out here, and I think perhaps, Justice Souter, may go more... more directly to your question as well.

The answer is no.

Even if an individual who has suffered an adverse effect caused by an intentional or willful violation of the act is entitled to a statutory damages award without being required to quantify actual damages.

There are still at least two individualized issues that will exist in every case.

One is the pleading and proof of the adverse effect, which necessarily may vary among different plaintiffs.

Second is the causation, and particularly in the causation question, Justice O'Connor, this is not a... a standard that... that plaintiffs lightly leap over.

In fact, there are a number of cases, one of which is the Oroquoia decision of the First Circuit, which was handed down while this petition was pending, noted that in cases where the... the adverse effect alleged is a... an emotional distress-type problem, you may well run into causation problems.

There could be any number of other stressors in this person's life.

Justice Scalia: Let's assume that somebody wrongfully and intentionally releases Social Security numbers, you know, just... just a whole bunch of Social Security numbers of their... their entire list.

They sell their... their list to somebody.

Why wouldn't that be a perfectly valid class action?

Every one of them has had the adverse effect of having his Social Security number out there, and every one of them has this same adverse effect, which is the, I don't know, the trauma of knowing that... that your... your Social Security number is floating out there where anybody can use it.

Why wouldn't that be a perfectly good class action?

Mr. Iv: Well, I... I think that the example you give, the problem remains, particularly one of causation.

Some folks may not have an adverse effect, they may not be concerned, I think, particularly if you're describing a case in which it's only the number that's released but the number's not linked to a name.

I think in those cases you might have difficulty.

Justice Scalia: Those numbers are... are linked to names.

Mr. Iv: I'd still go back to the... there's a causation problem.

If... if you're going to talk... that is an individualized issue.

Now, I--

Justice Ginsburg: May I ask, with respect to that, you brought this case.

I mean, you tried to get it certified as a class action and you were unsuccessful.

So I... I hear you telling this Court, we were way off-base in attempting to bring this as a class action because the adverse effect is different for each person.

So you're giving up on your first loss.

I mean, there are other circuits that might say, yeah, why not class action?

Mr. Iv: --I don't... I don't... I don't contend that there aren't arguments to be made.

What I am stating here is that there are some very strong--

Justice Ginsburg: But you say you lost fair and square, and now you've seen the error of your ways?

Mr. Iv: --Well, we lost fair and square and I... and I want to point out too, I want to give another example of a case, and it's one of the cases that the Government cites in its brief as the example of... of this... this problem, and that's the Schmidt case that is pending in the Western District of Wisconsin, which involves a putative class action against the Veterans Administration.

In that case, the Western District of Wisconsin held, and this has been since cert was granted in this case, held that, if you prove an adverse effect caused by an intentional, willful violation of the act, you are entitled to statutory damages of $1,000.

Nonetheless, that district court refused to certify a class on precisely the grounds that I am describing to you today.

So is it conceivable there could be a class action in a case?

Yes, it's conceivable, and I do--

Justice Breyer: But even if they're not class actions, I have, I think, the same problem people have expressed.

In Massachusetts, we put our Social Security number on our driver's license.

I have it right in my pocket.

I show it 10 million times a day, or however many.

So suppose that, you know, the IRS releases... California wants to do the same thing.

They have 35 million drivers, and the IRS sends them a list so they can check it out, or the Social Security Administration does that and, my God, there's 35 million lawsuits, $1,000 each, that's only 35 billion.

Suppose they do it nationwide.

There's 200 billion, and that's only Social Security numbers.

All you have to do is read through these 14 pages of fine print of the requirements of the Privacy Act, certain days have to be met, certain deadlines, and it's very easy to imagine bankruptcy in the Federal Treasury.

All right.

So, I mean, you know, trillions, it's easy to see that.

I can make up hypotheticals, which I'll spare you, but you see where I'm going, because what I want is that is the horrible.

And when I read the horrible, I think, my God, they're right.

All right.

Now, you tell me why they're not.

Mr. Iv: --In the hypothetical that you're proposing, Justice Breyer, I think there are several answers.

Justice Breyer: And just make up, you know, it's easy for both of us to make up a lot.

Mr. Iv: Sure.

Justice Breyer: I want to know what are the protections if you win against generating millions and millions of lawsuits with billions of dollars.

Mr. Iv: In... in the hypotheticals that you've described, if I could take those on their terms first.

It's very likely that one of the exceptions to the Privacy Act disclosure is going to apply usual... if it's the case that... that this is a working relationship between the Federal Government and various state governments and the like, that may well fall within the usual use.

There are a number of these exceptions listed, so certainly you have to look to those first.

Have to go... go back to... this would have to be intentionally wrongful conduct by the Government--

Justice Breyer: Well, yeah, I can't imagine any government agency that takes place that isn't intentional.

You always have people intending to do what they do in the Government.

Mr. Iv: --Certainly, well--

Justice Breyer: Nobody released these... nobody... nobody puts anything on a piece of paper, releases it, isn't intentional.

Mr. Iv: --Certainly the... the intent to release the... the information would be correct, but that's not the same as to say there was an intent to violate the Privacy Act.

Justice Breyer: Ah, in other words, in order to recover... now, that's an important point to me... in order to recover, the plaintiff has to show that the government individuals or the agency not only intended to do what did violate the act, but they intended that what they did would violate the Act.

They knew about the... that's willful, it's like they knew about the legal obligation and they intentionally violated it.

Mr. Iv: That's correct, Justice--

Justice Breyer: Well, then, how did you ever win this one?

Chief Justice Rehnquist: That's... that's... that's a very strong--

Justice Breyer: --Yeah, very strong.

Chief Justice Rehnquist: --instruction.

Ordinary... ignorance of the law is... is no defense, and there are all sorts of statutes that use the word willful, which simply means that you intended to do the act that you did, not that you knew it violated the law.

Mr. Iv: --Well, in... in this case... I... the consistent constructions of... of the Privacy Act is it's... it's greater than gross negligence.

It... it necessarily encompasses more than just I intended to do something.

It's that I... I willfully blind to my obligations in the--

Justice O'Connor: Well, how about this case?

How... how was that shown in this case?

Mr. Iv: --In pages... if I could point the Court to pages... bear with me for one moment... pages 90... 96--

Justice O'Connor: This was a... this was a distribution by administrative law judges--

Mr. Iv: --That's correct.

Justice O'Connor: --of hearing notices and decisions?

Mr. Iv: That... among other things.

The answer is yes, Justice O'Connor.

On pages 96A to 97A of the petitioner's appendix, there is the description of the magistrate judge's finding that there was a willful violation of the Privacy Act here and that there was a... there was no attempt even... no even attempt to comply with the act's requirements, and I... I would point--

Chief Justice Rehnquist: But to say there's no intent to comply isn't the same thing as saying that you knew you were violating the act when you acted.

Mr. Iv: --Well, let me amend my answer in this way, Mr. Chief Justice.

A willful ignorance... a willful ignoring of the act's requirements would qualify as a willful... and I... I want to--

Chief Justice Rehnquist: Well, how can you... how can you willfully ignore an act's requirements?

Mr. Iv: --Well, the Department of Labor was well aware of what the Privacy Act's requirements were and made no attempt to get the administrative law judges to comply, and... and I want to go back here this... to one of the answers I gave with respect to your adverse effect questions.

This issue was decided by the magistrate judge, adopted by the district court, and this was never appealed by the Federal Government.

Justice Breyer: Well, but our concern--

Chief Justice Rehnquist: --We're concerned here, Justice Breyer and I guess... what is going to happen if we rule in your favor?

That will probably not result in any benefit for the Government on this ground, but are we just opening a can of worms or is... by ruling in your favor?

Mr. Iv: The answer is no, and... and certainly I acknowledge, Mr. Chief Justice, and Justice Souter and Justice Breyer, that in future cases there might well be a lot more time spent litigating the issues of whether there was an adverse... truly an adverse effect and whether... and... and whether the... the violation was truly intentional and willful.

But I want to--

Justice Souter: Okay, but can... can we just go back to that for a second?

Mr. Iv: --Sure.

Justice Souter: Because we've been concentrating on willful, and you say, well, willful requires a very high standard.

As... as you just indicated in your answers, the statute doesn't require willful.

It requires intentional or willful.

Mr. Iv: Or willful.

Justice Souter: And it would be even more remarkable to construe the... the term intentional as requiring conscious disregard of... of a known statutory obligation.

Mr. Iv: Let... let me answer this way in response, and maybe it will... will help ease the concerns.

For 22 years, the interpretation of the Privacy Act that petitioner offers today has been the law of the land, and in that--

Justice Souter: Do you have a case that says intentional standing alone must be construed to include this conscious disregard of a... of a known legal provision?

Mr. Iv: --I can't cite a specific case for that proposition, Justice Souter, but I again go back to we were talking about intentional or willful, it's a high burden under any concept of what intentional or willful will be, and for years, for 22 years, from 1975 to, at the earliest 1997, when the Sixth Circuit decided the Reno case, the interpretation that I am offering this Court is the one that the courts of appeals had unanimously adopted, and never in those 22 years had the kind of parade of horribles that the Government posits in this case materialize.

Indeed, if anything, if you look... there is a... a reporter that lists every single case decided under the Privacy Act since 1975.

Justice Stevens: But have any of those cases involved disclosure of Social Security numbers?

Mr. Iv: None that I recall.

That seems to be a relatively new--

Justice Stevens: See, this seems to me a particular kind of disclosure that might happen over and over again in a very casual way.

Mr. Iv: --I... I submit, Justice Stevens, if it happens in a casual way, that's not going to provide anyone with a cause of action.

Justice Stevens: Well, pursuant to a policy such as they had here of that's the way they use to identify... driver's license they use it on, the Holiday Inn uses it for their social... all sorts of people use Social Security number for another purpose.

Mr. Iv: That's true.

It's certainly true that Social Security numbers are used for other purposes.

But what is clear from this statute is that Congress was specifically focused on concerns about Social Security numbers being disclosed and the adverse effects that can result from that.

Justice Breyer: That... that may be true.

What's bothering me, which may be the same thing, as Justice Stevens says, is that I might have thought that a Labor Department official could reasonably think, I have a list of 50,000 people here, several are named John Smith, I want to be sure we get the right ones so I'll put the Social Security number as identifier.

That doesn't on its... on its face seem like such an unreasonable thing to think, even if it's wrong.

And... and yet we have here a finding that not only is it wrong, but that it's intentional and willful, and that's what brings up the problem you come to argue, and I don't know how to deal with it, because I think, well, if this statute, intentional, willful really means the tough thing that you say, well, then it'll work, then you're right, there won't be a horrible.

But then I see this case, which seems to me to stand for the proposition that that tough standard isn't being applied.

And then I think, my goodness, you're opening the door to the horribles and... and I don't know how to do it because the other part isn't being argued.

That's my honest dilemma.

I put it to you.

Mr. Iv: I... I... I under... I well understand your dilemma, Justice Breyer, and I again go back to, I don't doubt if this... if the statute is given its natural reading, that the $1,000 statutory damages is available to those to whom the United States shall be liable, there will be an awful lot more traction, a lot more fighting over the adverse effect and the particular circumstances that would rise to the level of an intentional or willful violation in the future.

Justice Scalia: Mr. Campbell--

Mr. Iv: That's simply not an issue here.

Justice Scalia: --Really what... what Justice Breyer is saying is... is that this issue of willfulness or not is not in the case and we wish it were, because the answer to that is important.

Could we talk a little bit about what is in the case?

Mr. Iv: Yes, yes, Justice Scalia, thank you.

Justice Scalia: Can... can you tell me what... I... I really have trouble understanding how there can be an adverse effect without actual damage.

That's a very strange line.

I mean, in... in the Administrative Procedure Act, you talk about any person adversely affected or aggrieved, and that's a person who suffered damage.

It seems very strange for Congress to use language that... that sets up two different categories, adverse effect on the one hand, and actual damage on the other.

When... when is there an adverse effect without actual damage?

Mr. Iv: I think there frequently can be an... an emotional harm that is not quantifiable in dollar terms--

Justice Scalia: Well--

Mr. Iv: --and that's very common in the law.

Justice Scalia: --That doesn't mean that it's not actual.

It just means that it's hard to quantify, but you've had the emotional harm.

Why isn't that an... why isn't that actual... actual harm?

Mr. Iv: I... I want... I... I agree with you that that is an actual harm, and I think that's one of the things that the Government is... is trying to cloud the issue a bit in this case, and that is to equate actual damages and actual harm.

I submit they are different, that the... in... in interpreting the statute, the deliberate use of a term adverse effect and the deliberate use of a term actual damages, those must be given different meanings.

Justice Kennedy: Well, do you agree that, or do you contend that adverse effect include... includes emotional distress and that you have to show something like emotional distress before there is an adverse effect?

Mr. Iv: Yes, yes indeed, Justice Kennedy, and that is indeed the unanimous position of the Federal courts on that question.

Justice Souter: What... what do you say about the position of the... which I understood the circuit to be taking that, on the assumption that there... there was some emotional damage, at least in the sense that the... the man said, I was very upset when I heard that the number was out.

Assuming that, I thought the Fourth Circuit was saying, there is a category of harm that is generally non-compensable in the law, and we assume it ought to be non-compensable here, and that category is emotional damage, which has no physical manifestation.

And the general policy behind that is, we don't allow generally, tort law doesn't allow recovery there because it's too easy to fake.

And the Fourth Circuit, I thought, was saying, you know, whether you're talking about damage or whether you're talking about effect, this is an effect that the law simply doesn't generally recognize and it shouldn't be recognized here.

That's a different issue from whether it can be quantified or not.

What the circuit was saying is, you don't even get to the point of proving quantification.

What... what is your response to that?

Mr. Iv: If that is indeed what the Fourth Circuit's position is, it's squarely wrong.

At common law and intentional torts generally, and in privacy torts specifically, this type of harm is compensable in some at least minimal way, even if it cannot be quantified, and I think that's why--

Justice Souter: What about... even if there is no physical manifestation?

Mr. Iv: --Even if there is no physical manifestation.

Indeed, I submit, Justice Souter, it's... there's nothing surprising about the overall remedial scheme here, because it does track what happened at common law and intentional torts and with respect to intentional privacy torts.

In fact, the Privacy Act is more strict even than what was required at common law.

At common law, even no damage at all, no... I'm sorry... I don't... I don't want to get back into the confusion over the terms.

Even if there was no harm at all, there would be still be some at least minimal award, recognizing the invasion.

Justice Souter: Sure, because privacy--

Mr. Iv: Here you have to put--

Justice Souter: --I mean, in your... I understand your privacy argument, but that's because the invasion of privacy or the infringement of privacy is regarded simply as... as injury per se, and... and I thought the circuit was saying, that's not what we're dealing with here.

But you're saying, what, privacy is privacy and... and--

Mr. Iv: --Well, I... I want to--

Justice Souter: --But it's... but if that is so, then let me just get to my question.

If that is so, why did the statute go into speaking of actual damage at all?

Why didn't the statute simply say, if they invade the privacy by publishing something they shouldn't publish, you get at least $1,000 regardless.

But that's not what it said.

It's keyed it to actual damage, and it said, if there's actual damage, the person entitled to recovery for actual damage gets at least 1,000, which is something quite different.

It does not take the position that it's a per se compensable harm.

Mr. Iv: --Well, I... I, of course, disagree with your characterization of what subsection (A) in fact says, but let me go back to first part of the answer.

We are talking about an adverse effect, so we are talking about having to prove a harm.

We're not just talking about the ability to vindicate a privacy interest in the abstract.

You can certainly do that at common law, and Congress could have written a statute that allowed you to do that under the Privacy Act.

It didn't.

It did at least require that you demonstrate an adverse effect and real harm.

Justice Kennedy: And what... can... can you... and this goes back to Justice Scalia's initial question, what is the difference in adverse effect and actual damage?

Mr. Iv: The difference is the ability to quantify the harm in some dollar amount.

Justice Stevens: Yes, but if that's... if that's the case, I don't see why the risk of being subjected to identity theft would be increased by the disclosure of your Social Security number, and if that's true, and I think some people could prove the risk is increased, that would be true of every release of every Social Security number.

Mr. Iv: I... I... I would certainly agree that there is a real risk of identity theft any time there's a disclosure of a Social Security number, particularly as here when it's linked directly with the name.

Justice Stevens: So does it not necessarily follow that every one of those releases causes an adverse effect?

Mr. Iv: I don't think it is.

There could be... there could be people who aren't bothered by that or who don't share that fear.

Justice Stevens: Whether they're bothered about it or not, they're... they have an increased risk, just if you increase your risk of death, maybe they're not aware of it, but it's still an adverse effect.

Mr. Iv: Well, I do not contend that the Privacy Act is a statute that... that compensates in some way for merely increased risk.

I think that does go back to the adverse effect here.

You do have to have some sort of harm that actualizes, and here it did actualize in his real emotional distress about the disclosure.

Justice Scalia: Well, I mean, that doesn't answer it.

The harm does actualize, as you say it, once the Social Security number is released, the harm actualizes.

You're at greater risk than you were before.

That's... that's actual as can be.

Mr. Iv: I can't support that interpretation of the act, although candidly, it... it probably would be a better one for plaintiffs in the... in the run-of-the-mine case.

And the reason is this: If the... if the disclosure itself is the adverse effect, what happens is that the causation language in subsection (g)(1)(D) becomes superfluous, and I am being careful to the... the text here--

Justice Stevens: Well, it's superfluous with respect to Social Security numbers, but the statute covers a whole range of activities other than this particular case.

Mr. Iv: --Absolutely, Justice Stevens, and I... I... but I'm not sure... I... I don't think the answer is that it would be just superfluous with respect to Social Security numbers.

In every case, if the release of any information, let's say it's a medical record, not a Social Security number.

If the release itself is the adverse effect, the problem is that does not... that does not hew to the... the causation language contained in subsection (g)(1)(D).

Justice Stevens: Well, the release of medical information doesn't necessarily increase the risk of any particular harm.

But this particular information does increase the risk of an identity theft for everybody.

Mr. Iv: It does increase that... it does increase the risk--

Justice Stevens: It is not true if you say, well, you're taking aspirin three times a day or something like that.

So what?

But this is not a so-what situation.

Mr. Iv: --No, it's a... I agree, Justice Stevens.

It does increase the risk, but... but for some people, that increased risk may not cause them an adverse effect, the personal adverse effect.

I would like to reserve the remainder of my time for rebuttal, if I may.

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: Very well, Mr. Campbell.

Mr. Stewart, we'll hear from you.

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

I'd like to begin by discussing the distinction as we see it between the terms adverse effect and actual damages.

And as one of Justice Scalia's questions indicate, the term adverse effect is not one that originated in the Privacy Act.

It's... it's a term of art.

The general judicial review provision of the Administrative Procedure Act grants a right of action to persons adversely affected or aggrieved, and I don't think it's the case that a plaintiff under the APA needs to show that he has suffered the type of harm that would ordinarily be compensable in damages.

Because the APA excludes money damages as an available item of relief, the typical inquiry in... under the APA in determining whether a plaintiff has standing is whether he is likely to suffer harm in the future, not whether he has been harmed in the past.

And if we had a hypothetical APA suit, for instance, challenging an ongoing or imminent program by which the Government intended to release Social Security numbers, and a particular plaintiff could show there is a likelihood that my own Social Security number will be released in the near future, I think that would be sufficient in and of itself to establish that that person was adversely affected or aggrieved within the meaning of the act.

He would be suffering a... a violation of his legal right to have information about him maintained within the Government's files and he would also suffer at least an increased risk of identity theft.

That would be enough to get him into the... into court to seek prospective, injunctive, or declaratory relief.

But those certainly wouldn't be the types of harms that would ordinarily be compensable in damages.

Justice Scalia: Well, but that... but that's not the question.

It... it... the point is it's... it's not only enough to get him into court, which is what it is said adverse effect does here, it is enough under the APA to give him judgment.

He wins.

Mr. Stewart: He wins--

Justice Scalia: It... it is enough to give... to make his claim a valid... a valid claim.

Mr. Stewart: --He... he wins but--

Justice Scalia: And the reason he can't get money damages has nothing to do with the magic words, adversely affected.

It has to do with simply the fact that money damages are not available under the APA.

Mr. Stewart: --But--

Justice Scalia: But he wins under the APA.

Mr. Stewart: --But the fact that a plaintiff can win under the APA and, in our view, can't win under the damages provision of the Privacy Act simply reflects what is implicit in the APA's exclusion of money damages as an available item of relief, namely the view that agency action should ordinarily be reviewable in court, and plaintiffs who can show that they would be injured by unlawful government conduct in the future should ordinarily be able to get a judicial order decreeing that that not take place.

But plaintiffs are not ordinarily entitled to receive money damages from the Government for wrongs committed against them.

Justice Souter: And I take it you're... you're saying here... and they're not here because there's a further requirement of actual damage before they get money.

Mr. Stewart: That... that's right.

Justice Souter: Yeah.

Mr. Stewart: That the damages provisions restricts the availability of monetary relief to a person entitled to recovery, and the phrase, person entitled to recovery, is most naturally construed to mean someone who has not only established a violation of law, but who has established the prerequisites to an award of compensatory relief.

Justice Souter: Why... why did they put that phrase, entitled to recovery, in there in addition to actual damages?

I'll be candid with you that I... I was thinking that maybe they put it in there because they anticipated this... this category of cases like emotional damage without physical manifestations is non-compensable, and that... and that they were trying to leave open that kind fo a condition.

Mr. Stewart: One... one hypothesis as to why the phrase may appear as it does.

The phrase originated in the Senate version of the legislation, and the Senate version said that a plaintiff who establishes a will... an intentional or willful violation can collect actual or general damages, but a person entitled to recovery shall receive no less than $1,000.

And so, in the context of that provision, the phrase, person entitled to recovery, could be a shorthand for person entitled to recover either actual or general damages.

Justice Breyer: Well, he is entitled to recover actual damages if he has any.

Justice Souter: Yeah.

Mr. Stewart: But that--

Justice Breyer: And he's entitled to recover it if he doesn't have any.

He's entitled to recover it, whether he has some or whether he doesn't have some.

So I will... I don't understand, you say the most natural meaning of a person entitled to recovery is a person entitled to recovery who actually has actual damages.

That isn't how I'd normally read it.

I'd... I'd read it somebody who's... who's entitled to get it if he has it.

Justice O'Connor: Well, I guess that's the issue.

Justice Breyer: Yeah, that is the issue.

So I just want you to explain a little bit more--

Unknown Speaker: [Laughter]

Mr. Stewart: --I mean, I think... I think--

Justice Breyer: --about why that's the most natural reading.

Mr. Stewart: --I mean, the more... I think the more natural reading is that a person entitled to recovery is someone who not only has established some of the prerequisites to an actual recovery, namely a compensatory award, but who has established all of them.

And if the only compensatory relief available is actual damages, then a person who hasn't established actual damages is not entitled to recovery.

But even if a plausible argument could be made the other way, then the canon of construction that waivers of sovereign immunity are to be construed narrowly would compel the Court to read it in... in the narrow way.

Justice Stevens: Well, plus... plus the canon that... that you don't give words a meaning that renders them totally superfluous.

Mr. Stewart: That... that's--

Justice Scalia: And if it means what Justice Breyer suggests, you can just leave out the words, a person entitled to recovery.

Mr. Stewart: --Or... or--

Justice Scalia: Just read it, but in no case shall he receive less than the sum of 10,000, of $1,000.

Mr. Stewart: --That's correct.

If... if Congress had intended that any plaintiff who established an adverse effect from a willful or intentional violation would automatically receive at least $1,000, it could have used the word person or individual or complainant, which was... which were the words that Congress used elsewhere in the Privacy Act to describe the individual whose rights had arguably been violated.

Justice Scalia: Or just... just drop entitled to recovery.

Mr. Stewart: Exactly.

Justice Scalia: Shall a person receive less than the sum of--

Mr. Stewart: And the other point I would... we would make in following up on one of Justice--

Justice Ginsburg: --Mr. Stewart, if... and before going to the words of the statute, this... there are any number of statutes that have actual damages and it can say, or the statutory damages, and some of them have this formula, actual damages and person entitled to recover, and then there's shades in between.

Do you... do you really think that Congress, by using those different formulas, meant a different result in what would seem to be cases that don't... are not sensibly distinguished?

Mr. Stewart: --I mean, I think... I think we have to infer that Congress or presume that Congress meant something by the choice of words that it used.

And the phrase entitled to recovery is--

Justice Scalia: A benign fiction, right?

Mr. Stewart: --A benign fiction, that's right.

And I think it is also the cause that the phrase, person entitled to recovery, is used very rarely in the United States Code.

There are a number of provisions along the lines of actual damages or $1,000, whichever is greater, references to statutory damages or liquidated damages.

But the phrase, person entitled to recovery, is very rare and we would presume that Congress intended something specific--

Justice Breyer: All right.

I... I would... rather than do the presumption of what they intended deduced from canons, et cetera.

You assume that it is ambiguous.

You certainly got me there.

I'm... I see it's ambiguous.

And I also believe that Congress did not want to bankrupt the Treasury, destroying Medicare, Social Security, and every other programs we give $1 trillion in damages to people who have the social... I... I... you've got me there.

Now, how do... what they... what your opponents say is that is a made-up problem.

It doesn't... it isn't going to happen, and the reason it isn't going to happen is because these words, intentional or willful, are not used, the word intentional, as it normally is.

It's used in a very special way so that they have to almost... well, you've... now, you've... I'm cross-referencing our earlier argument and I'm at a dilemma here because it's not argued, I don't know how to deal with it, but it seems relevant to the underlying question that is moving me about what Congress intended.

Mr. Stewart: --The petitioner is correct that the phrase intentional or willful has been construed by the lower courts essentially as a term of art, and the prevailing test in the lower courts is whether the agency exhibited flagrant disregard for--

Justice Breyer: Oh, I'm sorry.

The lower court thing that we've looked up uses an or about that, and one of the parts of the or is without grounds for believing the action to be lawful, which means that part of the test, that if we have an ALJ, or we have people in the agency, just never think about it, as they might not in this case, that that cover... is covered by intentional or lawful.

And that's one of the problems I'm having, because it makes me think that that word intentional is a pretty complicated issue, which isn't argued.

It seems to be very important, and I don't know what to do.

Mr. Stewart: --I... I think, with respect to the... the language from the court of appeals' opinion that you quoted, the without grounds to believe that--

Justice Breyer: I have three of them like that.

Mr. Stewart: --Right.

I... I think what the courts are getting at is something at least akin to the standard that would prevail in a Bivens action, where an individual Federal officer was sued, where the question would be, could a reasonable officer in this person's position have believed that what he was doing was legal?

Probably the courts have applied it in a... in a manner that's slightly more deferential to the Government.

In... in... it doesn't mean, however, that the Government has to have been shown either to have intentionally violated the law or to have intentionally sought to bring about harm to the plaintiff.

Justice Scalia: Do we have to decide that in this case?

Mr. Stewart: No, no, I don't think you need to decide that.

Justice Scalia: I'd like a lot more argument on it before I decide that question.

Mr. Stewart: That... that's correct.

Justice O'Connor: Why--

Justice Scalia: --And some briefing on it.

Mr. Stewart: As the case comes to this Court, both parties are in agreement, or neither party contests the proposition that an intentional or willful violation was established.

Justice O'Connor: Mr. Stewart, what has happened in the 28-some years that this has been in effect concerning the amount of recoveries against the Government?

Mr. Stewart: I... I would candidly acknowledge we have not had a problem with enormous recoveries against the Government up to this point.

Justice O'Connor: What happened in the 1990 lawsuit you refer to on mailing of IRS farm... form 1040s, that had a Social Security number and the name.

Mr. Stewart: That... that was--

Justice O'Connor: What happened to that case?

Mr. Stewart: --That was ultimately dismissed on the ground that the Social Security numbers were not records, which is contrary to the general course of the law, which is that Social Security numbers would be... be records.

I... I want to be careful about this because we are not arguing that exorbitant liability would inevitably follow from a loss in this case.

What we are saying is, if we lose this issue and if the word adverse effect is given the same meaning in the Privacy Act that it has in the APA, the Government would be subject to enormous potential liability.

To take an example, following up on one of Justice Breyer's questions, as... as you pointed out, the Privacy Act is not limited to a prohibition on unlawful disclosures.

It contains a range of other provisions that could be best be described as technical or even bureaucratic.

One, for instance, is that when the Government collects information from private individuals, it has to identify, among other things, the source of authority, either a U.S. Code provision or an executive order that authorizes the information to be collected.

And if an agency circulated 100,000 forms and left off the U.S. Code cite, I think, under ordinary APA standards, any person who returned information on that form would be... would suffer an adverse effect, because he would have been deprived of--

Justice Breyer: Yeah, but that won't hurt you if... if, in fact, to show liability here, you have to show that the agency officials who made up that form knew... let's make it really tough... knew that leaving it off was command... putting it on was commanded by the act and they say, ha ha ha, I know it's commanded by the act, but I'm not going to do it.

Mr. Stewart: --I mean--

Justice Breyer: Now, that'll be pretty rare and the--

Mr. Stewart: --It would be rare.

Justice Breyer: --So the--

Mr. Stewart: Well, you could... you could imagine a situation, and we wouldn't condone this... this conduct, but you can imagine a situation in which an agency official gets back the 100,000 forms from the printer and says, oh my gosh, the U.S. Code cite was left off, but then decides, I know we're supposed to do this, but I'm not going to reprint 100,000 forms for something like that, let's circulate them.

We don't condone that behavior.

It would be a violation of law, but it's hard to imagine that Congress would have intended that everybody who fills out information on those forms would then be entitled to $1,000.

Justice Scalia: --Just to try to get this issue out of the case, are you content to have us decide this case on... on the assumption, just for the sake of argument but without ruling, that... that the act requires willfulness in the... in the most extreme sense that Justice Breyer describes?

Are you willing to have us decide the case on that assumption?

Mr. Stewart: Yes.

Justice Ginsburg: You're willing to have us decide what was not... what it was over, that there is an adverse effect?

In fact, the... the Government didn't dispute that, didn't dispute adverse effect, did it?

Mr. Stewart: Not... not as to Buck Doe.

The... the magistrate judge held that each of the plaintiffs had established an adverse effect simply by release of the Social Security numbers, and the district court didn't expressly endorse that view, but didn't reject it either.

Justice Kennedy: Is it your... is it your argument... and I'm glad we're back to the statute... that in order to determine in this case, in this case, whether there was a cause of action, you had to read beyond the adverse effect clause and go down to for... or before... and decide also whether there was actual damages, before there was a cause of action?

Mr. Stewart: You... you wouldn't have to decide whether there was proof of actual damages, but yes, I think if it was apparent on the complaint that there was an adverse effect but no possibility of proving actual damages, then the suit shouldn't be... shouldn't go forward, but--

Justice Kennedy: That... that's an... that's an unusual way to write the statute.

It's unusual to... to write the statute in a way where I don't know if I have a cause of action until I get down to where the damages are defined.

Mr. Stewart: --I... I agree, but I think it would be--

Justice Kennedy: Usually I would say that any person injured is the way we would expect this statute to have been written.

Mr. Stewart: --I agree, and it may be that to... Congress anticipated that questions concerning damages would be resolved at the end of the day, and there would obviously be a lot of cases in which a plaintiff would allege damages at the outset, and therefore, would have a cause of action, but if he failed to prove damages in the... the course of the trial, he wouldn't be entitled to the $1,000, even if he proved that he suffered an adverse effect from a willful or intentional violation.

Justice Souter: But Mr. Stewart, I... I take it that even... even if there was no indication of actual damage, the... by... by pleading the violation of the statute, he would at least have pleaded enough to entitle him to... to ask for a... to ask for equitable relief.

Mr. Stewart: We would say that equitable relief is not, in this context, is not specifically authorized by the Privacy Act.

But we would say that equitable relief would be available under the APA, and the allegation would be that the--

Justice Souter: Okay.

Mr. Stewart: --agency's action was not in accordance with law--

Justice Souter: I... I see.

Mr. Stewart: --because it violated the Privacy Act.

Justice Souter: May--

Mr. Stewart: So... so... and indeed, this suit at the outset included a request for injunctive relief against further disclosures, and the Government settled that part of the case with lightning speed.

There was... the... the plaintiff did obtain a judicial order directing the Government not to continue with its practice.

Justice Scalia: --So indeed there's... there... there's nothing bizarre about letting him get into court just on the basis of... of an adverse effect, because he can win in court on the basis of an adverse effect, not by reason of this act alone, but by reason of the obligations under this Act plus the APA.

Mr. Stewart: That's correct.

Justice Souter: Right.

May I... may I go to another issue?

I mean, one of things that's bothering us is several issues that seem crucial, which we're just having to make assumptions about here, and depending on the assumptions, the scope of liability may... may be enormous.

Here's the one that is bothering me.

The... the Government is not contesting here that in fact there... there was some kind of actual damage, even though it was not quantified.

Mr. Stewart: No, I think we are contesting that.

Justice Souter: Well, I... but... but you're not contesting the fact... let me put it... I... I misspoke... you're not contesting the fact that if he showed emotional damage and emotional damage alone, no physical effects, that that would be enough for recovery if... if a fact-finder said, well, I think the emotional damage is worth $250--

Mr. Stewart: No, no.

We... we are contesting that and--

Justice Souter: --You are contesting that?

Mr. Stewart: --It hasn't really been--

Justice Souter: Are... may... may I ask you just a further question, then you can tell me which... whatever you want.

Are you contesting as a matter of law the sufficiency of this plaintiff's testimony to at least get to the fact-finder on whether there was actual damage?

He testified... I forget his exact words... but he testified, you know, I was so upset when I heard that they had released my Social Security number, I just didn't know what to do or what to say, something like that.

Are you contesting the sufficiency of that evidence to put an issue of actual damage to the fact-finder?

Mr. Stewart: --Yes, and let me backtrack for a second to say that the Fourth Circuit decided that Mr. Doe had not proved actual damages, and the petitioner did not seek this Court's review of that holding, so--

Justice Souter: But they said he didn't prove actual damages because there was no physical effect.

Mr. Stewart: --That... that's right.

There was--

Justice Souter: They didn't say that, as a matter of law, if you don't have the emotional physical effect rule, he wouldn't have had enough to... to get to the fact-finder an actual damage.

Mr. Stewart: --That... that's correct.

My... my only point was, the reason we haven't briefed the question of whether there were in fact actual damages is that our understanding is that, because petitioner didn't seek this Court's review of that aspect of the... the court of appeals' holding, as the case comes to the Court, we're assuming that there were no actual damages.

Justice Souter: And you didn't... you didn't cross?

Mr. Stewart: But... but to answer your... your question about what the Government's position on the law is, our... our first argument is that in the context of this specific statute, the phrase actual damages refers only to pecuniary harm, and we've cited in a footnote a conflict among the circuits with respect to that question, and that... that isn't presented by this case.

Justice Souter: Okay.

Mr. Stewart: But we would--

Justice Ginsburg: Mr. Stewart, may I ask you a question with respect to that?

Suppose this Doe said, I'm very concerned about the impact of this on my credit rating, so I'm going to spend $10 to a credit... credit reporting company to find out whether there's been any theft of my identity, $10.

Would there then be a claim under this statute for actual damages?

Mr. Stewart: --I mean, there... there would be a question of whether that was... whether there was causation, whether that was a reasonable response to the threat, but in theory, an expense like that could qualify as pecuniary harm and, thus, is actual damages.

Justice Ginsburg: But it made... it made me think that if there's ambiguity in this statute, that wouldn't have made much sense for Congress to write a statute like this where, to meet the actual damage requirement, all you have to do is make a $10 expense.

Mr. Stewart: I mean, I agree that it's a somewhat anomalous result that the availability of the thousand can turn on a relatively small pecuniary loss.

It's... it's somewhat analogous at least to the common law rule that punitive damages are available only to a plaintiff who's shown some level of compensatory damages, and there also a plaintiff might be able to contrive a small loss that is compensable, and thereby make himself eligible for punitive damages that far exceed the amount of--

Justice Ginsburg: But it's not just not contrived, because now it's a formula for... for all the people who have this kind of complaint, so I think if that's what... what the line is, then Mr. Doe, is it, all the future Mr. Does will ask to have their credit checked.

Mr. Stewart: --I mean, we would still want to... we would still have to know whether that was in fact a reasonable response to what the Government had did... done... and what the... the threat that it posed to the... the plaintiff.

And even if that kind of machination might be possible in in one category of cases, it would still not be possible in a lot of other categories of potential... of Privacy Act violations.

To continue with my answer to Justice Souter's question, the... the second thing we would say about the emotional injury is that, even if some emotional harms were compensable as actual damages under the statute, we don't think that the particular emotional harm alleged here would be, because a Social Security number, unlike, for instance, intimate details about a person's family life, is not inherently private or secret or confidential.

It's not the sort of information that would cause a person to say, I would be horrified to think that somebody else knew that even if I could be sure that that person wasn't going to misuse it against me.

The... the reason that people are worried about release of Social Security numbers is that that release may lead to some further, more tangible harm, identify theft or--

Justice Souter: So you're saying as a matter of law, this is just what he testified to is simply too de minimis to be considered evidence--

Mr. Stewart: --That--

Justice Souter: --sufficient evidence.

Mr. Stewart: --That's correct.

And we've cited the Metro-North case in our brief, and I think that the harm... the emotional harm that he's alleged is really... really very similar to the fear of cancer as a result of asbestos exposure that was held not to be compensable in the absence of some current physical impairment.

So to... to... follow up on this and make our position absolutely clear, we are saying that if the term adverse effect is given its usual meaning, and every plaintiff who establishes an adverse effect from a willful or intentional violation is entitled to $1,000, that the potential financial consequences would be enormous.

Now, I would say in all candor that if we lose this case, it's quite possible that the Government would argue in the lower courts that to protect the public fisc, the... the phrase adverse effect should be given a narrower construction under this statute than under the APA.

But our basic point is--

Justice Stevens: May I ask, with respect to the parade of horribles that we're confronted with, is I... it's my understanding that there are several other statutes under entirely different statutes, they have the similar provision but they're clearly worded in a way that says, if you get anything, you'll get the minimum, and... but it's the position that your opponent contends is the proper reading of that statute.

There are several such statutes, am I--

Mr. Stewart: --There are a lot of statutes with wording, for instance, to the effect of a plaintiff who establishes a violation will receive actual damages or $1,000, whichever is greater.

Most of those don't apply to suits against the United States--

Justice Stevens: --And... and--

Mr. Stewart: --but there are many such laws.

Justice Stevens: --And most of those would not require proof of actual damages?

Mr. Stewart: That's correct.

Under the plain terms of the statute, the plaintiff would get the 1,000--

Justice Stevens: Why in your view did Congress come up with a different formula in this case than it has in that... in the pattern of statutes that those represent?

Mr. Stewart: --I'm... part of it may be that most of those statutes are not dealing with suits against the United States, and Congress may be more protective of the public fisc, and part of it is the... the legislative debates reveal that Congress considered a variety of potential damages provisions, some of which were more generous than the one that was ultimately enacted, some of them less generous.

For instance, the more generous provisions--

Justice Stevens: But this statute is unique, is it not?

Mr. Stewart: --It's not quite unique.

I believe there are a couple of other provisions that use the phrase, person entitled to recovery, and that phrase has not been authoritatively construed by this Court, so those... interpretation of those statutes would raise the same question this one does.

Justice Ginsburg: But there's a number of them that start out with actual damages.

Mr. Stewart: And... and sometimes, again, the words are to the effect of actual damages or $1,000, whichever is greater.

And because the availability of the $1,000 is not limited to a, quote, person entitled to recovery, unquote, the plain language of many of those statutes compels the conclusion that $1,000 will be awardable regardless of actual damages.

Justice Ginsburg: Now, there was an interpretation... Congress told OMB to do interpretive guides, and it did, and it... and it gave it the meaning that this plaintiff gives it.

It's... it read the statute... didn't... wasn't that what OMB said?

Wasn't that their contemporaneous--

Mr. Stewart: I mean, I think the more... I think you're right that the more natural reading... the OMB guideline didn't address in terms the situation where a plaintiff shows no actual damages but nevertheless claims the thousand, but the OMB guideline did say, a person who suffers an adverse effect from a willful or an intention violation shall receive a 1,000... actual damages or $1,000, whichever is greater.

Justice Ginsburg: --It said actual damages or 1,000.

As I understood the... that original interpretation, it was the reading that the plaintiff is putting forward here and your response to it in your brief seemed to be that was a wrong interpretation because it didn't take account of sovereign immunity or saving the sovereign fisc and an official at OMB said it was wrong and it's not... no longer effective.

Mr. Stewart: I mean, I think if... if plaintiffs are using the OMB interpretation to establish the point that intelligent people can read the statute the way that they did, I... I think it's validly used for that purpose.

But the OMB guideline is not entitled to deference, as the Court held in Adams Fruit, a statutory provision that is to administered solely by the courts is not one as to which the Court will defer to administrative interpretations.

The... the OMB--

Justice Ginsburg: But didn't... didn't Congress designate OMB to... to these guides?

Mr. Stewart: --Congress designated OMB, but it's... the particular provision that is at... specifically at issue is reprinted at page 13a to the appendix to the Government's brief.

And it says, the director of the Office of Management and Budget shall develop and, after notice and opportunity for public comment, prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section.

So the only specific directive that OMB had was to instruct or direct agencies as to their substantive obligations under the act.

Now, in the course of doing that, it was entirely appropriate for OMB to go further and offer its view to the agencies as to what consequences would follow if they breached their substantive obligations, but that wasn't a task that was specifically entrusted to OMB by statute, so I don't think there's any basis for inferring that Congress--

Justice Scalia: I see.

You're... you're saying that... that it... it was meant just to tell the agencies what you have to do to comply with the act.

Mr. Stewart: --Exactly.

Justice Scalia: Yeah, that... that's probably the best reading of it.

Mr. Stewart: Exactly.

Justice Scalia: Yeah.

Mr. Stewart: So the... the last... the last point I wanted to make is, it might be possible, if... if we lost this case, it might be possible to mitigate the financial consequences to the Government by giving the term adverse effect a narrow construction, but our... our view is, if the consequence of adopting plaintiff's reading of the phrase person entitled to recovery is that an established term of art like adverse effect has to be construed in other than its normal manner in order to make the statute make sense, there's something wrong with plaintiff's reading.

Justice Breyer: But why... why do you say that?

Because, see, the adverse effect part governs people who don't even want damages.

I mean, it... it's to get into court, it's just to get into court, bring the suit, isn't it?

Mr. Stewart: Right.

Justice Breyer: So... so I would have thought that your... your reaction... I just want you to clarify this... would be, if they win this case, then the reaction would be to go back and say, all right, if we're going to give $1,000 to people who really are just feeling bad about what happened, we've got to give them all $1,000, well, it's only in circumstances where the agency really did something quite wrong.

And so you'll read that intentional or willful requirement toughly, not... not the adverse effect part tough.

I mean, why... why wouldn't that be the reaction?

Mr. Stewart: I mean, I guess if... if this... if this Court held that the phrase intentional or willful was limited to situations--

Justice Breyer: I don't see... yeah?

Mr. Stewart: --If it... if it was limited to situations in which the Government set out to violate an individual's rights under the Privacy Act, that... that would be another way at least of--

Justice Breyer: Yeah, yeah, and then you'd say, well, we should assume that's what happened here, though.

It certainly didn't--

Mr. Stewart: --I... I mean--

Justice Breyer: --but we should assume that.

Now, suppose I assume that, and then I decide that they're right on the basis of that assumption, and then in the next case it turns out my assumption happened to be quite wrong because Congress had a broad intent there.

Now what happens?

Mr. Stewart: --I mean, even under the narrowest possible interpretation of what intentional or willful means, you could have hypotheticals like the one with the form that left off the U.S.C. cite, and again, we... we hope those things would happen very rarely, but it seems highly unlikely that Congress would have wanted each of the hundred thousand people who put on... information on the form to get $1,000.

Thank you.

Rebuttal of Jack W. Campbell Iv

Chief Justice Rehnquist: Thank you, Mr. Stewart.

Mr. Campbell, you have five minutes remaining.

Mr. Iv: Thank you, Mr. Chief Justice.

Justice Kennedy, I'd like to address my first point to you, because I... I think you put your finger on one of the number of... of absurd results, or difficult-to-swallow results that flow from accepting the Government's interpretation.

The Government's essential contention here is that quantification of actual damages is an essential element of a Privacy Act claim, but boy, what a strange way to write the statute if that's what Congress intended.

The... the relative language is reproduced at pages 3 and 4 of petitioner's brief, and it says that whenever an agency fails to comply with any other provision of this section, and I'm going to ellipsis, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and I'm putting another ellipsis there.

You then go to subsection (g)(4), which states that if that adverse effect was the result of an intentional or willful violation, then the Government, the United States shall be liable, in the sum... in an amount equal to the sum of.

Liability is established once those three prerequisites are met.

All that is left at that point is an exercise of arithmetic.

It would be a very strange statute that says the United States shall be liable in the sum of the following amounts you are to add up, and that amount would be zero.

And, in fact, that would never be the case.

Costs are always available to a Privacy Act plaintiff who establishes an adverse effect caused by an intentional or willful violation of the act.

So there are certainly going to be at least some recovery.

There's no qualification of the costs award with reasonableness of precondition of actual damages.

So some... there is going to be a recovery in those cases.

Now, if that's the only recovery that's available, it's a very... it's, one, a very strange statute, and number two, a statute that arguably is unconstitutional.

But you don't need to read it that way, because the natural reading is, as was pointed out in the argument, that, yes, Congress did anticipate precisely this issue, that privacy invasions very typically result in emotional harms that inherently are not quantifiable, and Congress didn't intend, I can't imagine, to... to make the line of recovery turn on whether you can prove that you put 37... a 37-cent stamp on an... on an envelope to get your credit report or pay the $10 fee.

That's a very arbitrary line.

Why would Congress be solicitous of people who suffer the same harm... be solicitous of the one who put a stamp on an envelope?

That's a nonsensical.

Moreover, it reduces any efficiency savings that are realized under the act as Congress intended by saying, look, we're not going to get into those sorts of proof issues.

If you have an emotional distress and it's typical, it's caused by the intentional violation, we don't go through that.

You get your damages of $1,000 and let's not go through the proof.

That's a very natural reading of the act.

But the Government... the Government is asking you to adopt a... an interpretation that has a number of additional problems.

It renders the adverse effect requirement superfluous.

Proof of actual damages will necessarily in every case require proof of an actual harm and causation.

So even the attempt by the Government to place a... a meaning on the adverse effect requirement must fail.

Again, it turns the shall language into may, or at best, renders shall illusory, because the sum would be zero in most cases.

Justice Scalia: As to your point about the... the costs.

You don't get costs unless, it says the court may assess reasonable attorneys' fees and other litigation costs reasonably incurred in any case in which the complainant has substantially prevailed.

And I assume that when later on they... they say the costs of the action together with reasonable attorneys' fees as determined by the court, they're referring back to the court has allowed those... those costs and fees, because he has substantially prevailed?

Rebuttal of Malcolm L. Stewart

Mr. Stewart: I'm sorry, Justice Scalia.

I... are you referring to the language that's in (g)(2) and (g)(3) of the statute?

Justice Scalia: Yes, I am.

Mr. Stewart: (g)(2) and (g)(3) are entirely different causes of actions.

Those deal with requests for injunctive relief, and this is the only type of injunctive relief under the Privacy Act, injunctive relief for access to files or correction of files.

Those are separate causes of action.

In fact, I submit, Justice Scalia--

Justice Scalia: I see.

I see what you're saying.

Mr. Stewart: --that the contrast in the language between (g)(2) and (g)(3)--

Justice Scalia: I see what you're saying.

Mr. Stewart: --and (g)(4) proves my point.

Here, Congress anticipated that there is a substantial... substantially prevailing party.

That party--

Justice Breyer: Well, what assumption would you like us to make--

Justice Scalia: --Right, right.

Justice Breyer: --in respect to the meaning of intentional or willful?

Mr. Stewart: --I... I submit that a perfectly proper interpretation of intentional or willful can include conscious disregard of... of the... of the legal obligations.

That's a well-established standard.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Campbell.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at 10 o'clock.

Attribution:

The Oyez Project

Featured:

Lawrence and Garner v. Texas - Oral Argument

Fri, 09 Jan 2009 14:50:37 +0000

Case:

Lawrence and Garner v. Texas

Media File:

02-102_20030326-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul M. Smith

Chief Justice Rehnquist: We'll hear argument next in No. 02-102, John Geddes Lawrence and Tyron Garner v. Texas.

Mr. Smith.

Mr. Smith: Mr. Chief Justice, and may it please the Court.

The State of Texas in this case claims the right to criminally punish any unmarried adult couple for engaging in any form of consensual sexual intimacy that the State happens to disapprove of.

It further claims that there's no constitutional problem raised by a criminal statute that is directed not just at conduct, but at a particular group of people, a law that criminalizes forms of sexual intimacy only for same-sex couples and not for anyone else in the State who has... has the right to make a free choice to engage in the identical conduct.

Petitioners are two adults who were arrested in a private home and criminally convicted simply because they engaged in one of the forms of sexual intimacy that is on the banned list in the State of Texas for same-sex couples.

They bring two constitutional claims to the Court today.

First, among the fundamental rights that are implicit in our concept of order of liberty, must be the right of all adult couples, whether same-sex or not, to be free from unwarranted State intrusion into their personal decisions about their preferred forms of sexual expression.

Second, there's no legitimate and rational justification under the Equal Protection Clause for a law that regulates forms of sexual intimacy that are permitted in the State only for same-sex couples, thereby creating a kind of a second class citizenship to that group of people.

Chief Justice Rehnquist: On your substantive due process submission, Mr. Smith, certainly, the kind of conduct we're talking about here has been banned for a long time.

Now you point to a trend in the other direction, which would be fine if you're talking about the Eighth Amendment, but I think our case is like Glucksberg, say, if you're talking about a right that is going to be sustained, it has to have been recognized for a long time.

And that simply isn't so.

Mr. Smith: The Court's cases, Mr. Chief Justice, say that history is a starting point, not the end point of the analysis.

And I think that it's important to look at history as a whole and one of the errors that I think that the Court made in Bowers v. Hardwick was only looking at the issue in terms of homosexual sodomy and not looking at the issue in general terms, which is the right of everyone to decide for themselves about consensual private sexual intimacy.

If you look at the history as a whole, you find a much more complicated picture.

First of all, you find that sodomy was regulated going back to the founding for everyone and indeed the laws in the 19th century didn't focus on same-sex couples, they focused on particular--

Justice Scalia: Well, you're getting to your equal protection argument now.

Let's... let's separate the two.

The first is, your... your... your fundamental right argument, which has nothing to do with equal protection?

Mr. Smith: --Well, Your Honor--

Justice Scalia: So the same-sex/other-sex aspect doesn't come into it--

Mr. Smith: --I think it does come into it, because if you're going to suggest that the state of the law in the books in the 19th century is the touchstone you have to take into account that in the 19th century at least on the face of the law married couples were regulated in terms of their forms of sexual intimacy that were created for them.

Justice Scalia: --It may well be, but so were same-sex couples.

Mr. Smith: Indeed, they all were, Your Honor.

Justice Scalia: So all same-sex couples could not... could not perform this act lawfully.

What more do you need than that?

It was prohibited.

When you go beyond that and say, oh, but it was also prohibited for... for other sex couples, you're getting into an equal protection argument, it seems to me, not a fundamental right argument.

Mr. Smith: I guess I'm suggesting Mr.... Justice Scalia, that it's been conceded here by this State, it was conceded by the State of Georgia 17 years ago, that married couples can't be regulated as a matter of substantive due process in their personal sexual expression in the home.

That means that the state of the law on the books in the 19th century can't be the deciding factor.

Justice Scalia: They conceded it.

I haven't conceded it.

Mr. Smith: Your Honor.

That may well be true.

I was... I was working with the assumption that there may be Justices who... of the view that married couples do have such a right and I am suggesting that the real issue here is whether that fundamental right extends outside the marital context into other unmarried couples who form bonds and have... and... for whom sexual intimacy plays an equally important role in their lives.

Justice Ginsburg: Were you talking specifically about this Eisenstadt against Baird where there was an unmarried couple... while there was an unmarried person and the conduct in question would have been perhaps in the 19th century, early 19th century, criminal?

Are you talking about fornication?

Mr. Smith: Yes, Justice Ginsburg.

I think the Court in... has moved from Griswold to Eisenstadt... has moved in the contraception area outside of the marital context to the unmarried context, certainly the right... the qualified right to abortion applies to unmarried people, as well as married people.

And I think that the Court in... in looking at this issue of the scope of the fundamental right to make choices about sexual intimacy ought to take into account not just the state of law on the books in the 19th century but a couple of other factors, one the change in enforcement in the last 50 years because the Court's fundamental rights cases all do look at current laws, as well as 19th century law and also even in the 19th century, the fact that there's no record of active enforcement of these laws against conduct... of adults consensual occurring in the private setting and that's true for married couples, it's true for different-sex couples who weren't married, it's true for same-sex couples.

The enforcement of the sodomy laws of this country going back to the founding involves coercion, it involves children.

It involves public activity.

It doesn't involve the kind of conduct that's at issue here.

So you really have a tradition of respect for the privacy of couples in their... in their home, going back to the founding and I think then what began to happen in 1960 was a recognition that we should take that tradition and... and turn it into positive law on the books.

And so you now had three quarters of the States who no longer regulate this conduct for anyone based on a recognition that it's not consistent with our basic American values about the relationship between the individual and the State.

Justice Scalia: Well, it depends on what you mean by our basic American values, to revert to what the Chief Justice was suggesting earlier.

Really what's at issue in this case is whether we're going to adhere to... in the first part of the case, not the equal protection aspect.

It's whether we're going to adhere to what... what we said in... in Glucksberg, mainly that before we find a substantive due process right, a fundamental liberty, we have to assure ourselves that that liberty was objectively deeply rooted in this Nation's history and tradition.

That's what we said in Glucksberg and we've said it in other cases.

Or are we going to depart from that and go to the approach that we've adopted with regard to the Eighth Amendment, which is it evolves and changes in... in social values will justify a new perception of what is called unusual punishment.

Now, why should we... why should we slip into the second mode?

I'm... I mean, suppose all the States had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws.

Does that make flagpole sitting a fundamental right?

Mr. Smith: No, Your Honor, but the Court's decisions don't look just at history, they look at the... at the function that a particular claimed freedom plays in the lives of real people.

That's why contraception became an issue.

That's why abortion became an issue.

Justice Scalia: I don't know what you mean by the function it plays in the lives of real people.

Mr. Smith: The Court has said that--

Justice Scalia: Any law stops people from doing what they really want to do.

Mr. Smith: --The Court has said that it's going to use reasoned judgment to identify a realm of personal liberty that involves matters of central and core to how a person defines their own lives, and relates to key other people.

It's about moral upbringing of children in the home.

It's about procreation or nonprocreation in your sexual relations with your mate.

It's about basic questions of what kind of a family you're going to live with and other intimate associations.

Chief Justice Rehnquist: Well, you say it's about procreation or nonprocreation, but none of the cases that you have talked about involved nonprocreation, did they?

Mr. Smith: They certainly involved the right to decide to engage in sexual relations with... while preventing procreation, that's what... that's what Griswold and Eisenstadt and Carey all say you have a right to do.

That there's a right to decide whether to bear and beget children and then that right resides with unmarried people as much as it resides with married people.

And I submit to you that it's illogical, fundamentally illogical to say that an unmarried couple has a right free of State intrusion to decide whether or not to have procreative sex or nonprocreative sex, but doesn't have the right to be free from State intrusion... free from a law that says you can't have any sexual intimacy at all.

There's a... there's a jagged piece missing from the edifice of this Court's substantive fundamental rights jurisprudence.

Justice Scalia: It doesn't say you can't have... you can't have any sexual intimacy.

It says you cannot have sexual intimacy with a person of the same sex.

Mr. Smith: This particular law does that, yes, Your Honor, but certainly our... our submission is that fornication laws and... and laws involving sodomy regulation more broadly would be equally unconstitutional, because they involve--

Justice Souter: But your position, as I understand it, is even if you take the narrowest view of Glucksberg and even if you say there's got to be a positive historical sanction, that in fact there is no historical... no substantial historical evidence to the contrary because, A, the... the sodomy laws were not enforced against consensual activity historically and B, they were not aimed at homosexual as opposed to sodomy in general?

Mr. Smith: --Right.

Justice Souter: Is that... your historical point, you say even if I accept your argument, I should win?

Mr. Smith: Yes, Your Honor.

I think first of all that the positive law, the law on the books proves too much because it intruded right into the marital bedroom and that the record of enforcement which may be more informative actually supports us rather than supporting the notion that this is something that can be regulated.

Justice Scalia: What do you mean by the record of enforcement, that there were... that what happened in this case was an accidental intrusion of the police?

They didn't come into the bedroom looking for people conducting illicit sexual relations?

They were there for another reason and happened to discover these... these men in that conduct.

What do you mean by lack of enforcement?

The police have not gone around knocking on bedroom doors to see if anyone... I mean... this is not the kind of a crime that the police go around looking for, but do you have any evidence to show that when they... when they found it being committed, they turned a blind eye to it and did not prosecute it?

Mr. Smith: The evidence we have is the... is the absence of reported cases discussing arrests for that kind of conduct.

Justice Scalia: Well, that's because it's... it's an act committed in private, and... and the police respect the privacy of... of one's home, of one's bedroom, and so they don't investigate and find it.

But it seems to me what you would need is evidence that when the police discovered this matter, they said, oh, well, these are not laws that we enforce.

I don't see any evidence of that sort.

Mr. Smith: Certainly it seems to us there's a significance to the fact that it has never been treated as, for example, drug use in the home has been treated.

And people do... the police obviously do actively seek to infiltrate homes to find that kind of activity, it's been treated in a categorically different way.

But perhaps--

Justice Breyer: To what extent can you characterize it?

I mean, the ACLU brief has a lot of evidence along this line.

I... and it seemed to me they want to characterize it as saying that the history has gone exactly the opposite direction than what's been suggested.

But if you go back to colonial times really, the laws not only were different but look at the prosecutions.

And they did prosecute people for sex crimes.

But they didn't prosecute people for same-sex crimes.

And then if you go across the history, it's only recently that people have been prosecuted for same-sex crimes.

Is that a fair characterization?

What is the real record?

Mr. Smith: --The argument about 19th century enforcement is that they didn't prosecute anyone for private and consensual crimes involving adults, that they worried about children, they worried about public activity, they worried about coercion, but that they didn't worry about same-sex or different-sex sodomy.

Now as to the equal protection point which I think I should get to in my remaining time.

This is a statute which in addition to intruding into that area of important fundamental protections, limits its focus just to one small minority of the people of the State of Texas.

It says that these specified forms of sexual intimacy called deviate sexual intercourse are illegal only for same-sex couples and not for anyone else in the State of Texas.

Justice O'Connor: Well, what about a statute that covered both?

Mr. Smith: Well, I think that would be unconstitutional under my first point, Your Honor.

Justice O'Connor: Right.

Mr. Smith: I think there is a multiple... multiply unconstitutional statute, because it does the second thing as well, it says that--

Justice Kennedy: Well, if the statute covered both, would there be an equal protection argument?

Mr. Smith: --If there was a record of enforcement almost exclusively as to same-sex couples, I think there would be potential constitutional problems there, but the statutory language itself would not involve an equal protection problem of the same sort that we're dealing with here.

Justice Scalia: Mr. Smith, aren't there a lot of statutes like that?

Aren't there statutes in many States about adultery that don't cover sexual relations of one of the married couple with someone else of the same sex?

Are they unconstitutional because of denial of equal protection?

Mr. Smith: I don't know whether statutes actually are written that way, Your Honor.

The point I would make is that when a statute--

Justice Scalia: What about rape laws?

There are... there are rape laws that... that only apply to... to male/female rape.

Mr. Smith: --That may be as well.

I think--

Justice Scalia: You think that they're unconstitutional?

Mr. Smith: --I didn't suggest that they're unconstitutional.

My point is that when a statute is limited to one particular group of people, particularly a minority of people in the State, that that limitation itself has to be justified under equal protection, that that's a classification of people, not merely a definition of conduct.

And that if the... if the justification of the line that was drawn here is... is insufficient as a matter of mere rationale basis analysis.

Because--

Justice Scalia: I don't understand that.

Suppose the State has a rape law that... that, you know, that really requires the penetration of the female sex organ by... which is the classic common-law definition definition of rape, and it has no... no law of... about homosexual rape.

You think that that law would be unconstitutional?

Mr. Smith: --I think it would have to be justified by the State.

They may well come in with evidence that this is not a problem that needs to be addressed or that the victims are more able to protect themselves, they may have... they may have--

Justice Scalia: One step at a time?

This is more common?

This is... or this is something that we find more... more... more... more odious?

Mr. Smith: --Well, the one thing that I submit, the Court, the State should not be able to come in to say is we are going to permit ourselves the majority of people in our society full... full and free rein to make these decisions for ourselves but there's one minority of people don't get that decision and the only reason we're going to give you is we want it that way.

We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy and the State should have no basis for intruding into our lives but we don't want those people over there to have the same right.

Justice Scalia: I mean you you can put it that way, but society always... in a lot of its lives makes these moral judgments, you can make it sound very puritanical, the... you know, the laws... the laws against bigamy, I mean, who are you to tell me that I can't have more than one wife?

You blue-nose bigot.

Sure.

You can make it sound that way, but these are laws dealing with public morality.

They've always been on the book, nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them.

Why is this different from bigamy?

Mr. Smith: First of all, the first law that's appeared on the books in the States of this country that singles out only same sex sodomy appeared in the '60s and the '70s and it did not... and it does not go way back, this kind of discrimination.

Now, bigamy involves protection of an institution that the State creates for its own purposes and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these peoples behaviors, we include a criminal law which is where the most heightened form of... of people protection analysis ought to apply.

This case is very much like McLaughlin, Your Honor, where you have a statute that said we're going to give an specially heightened penalty to cohabitation, but only when it involves a white person with a black person.

That interracial cohabitation is different, and the State there made the argument we're merely regulating a particular form of conduct, and that's a different form of conduct than... than intro racial cohabitation.

And this Court very clearly said no.

You're classifying people.

And that classification has to be justified.

And this Court at many times said a merely disapproval of one group of people, whether it be the hippie communes in Moreno or the mentally retarded in Cleburne, or indeed gay people.

Chief Justice Rehnquist: But all... almost all laws are based on disapproval of either some people or some sort of conduct.

That's people legislate.

Mr. Smith: And what this Court does under the equal protection clause is... is... standard as a bull work against arbitrary government when the... when there is no rational justification for the line that is drawn.

Justice O'Connor: Well, do you... do you... understood in order to win under an equal protection argument, do you have to apply some sort of heightened scrutiny?

Mr. Smith: We certainly do not think we do, Your Honor.

We think this fails rational basis scrutiny, just as the law did in Romer, in Cleburne, in Moreno, in Eisenstadt, all of those laws were thrown out under rational basis scrutiny, because the State basically didn't come up with anything other than we want it that way.

We want these people to be excluded.

We'd had distaste for them.

We disapprove of them.

It's mere disapproval, or hostility, however historically based, is not sufficient.

And certainly even applying the rational basis--

Justice Scalia: We said the opposite in bowers, didn't we?

Overrule bounds essentially on that point?

Mr. Smith: --Well, certainly bowers is not an equal protection case and it didn't involve this kind of discrimination.

Justice Scalia: The equal protection and on to the--

Mr. Smith: No I was still talking about the level of scrutiny under equal protection, Your Honor.

Justice Scalia: --Maybe you ought to hold up one hand so I'll know which?

Mr. Smith: It's hard when you have these two points to shift back and forth.

Justice Scalia: I understand.

We had the same problem in the last case--

Mr. Smith: Three weeks ago, yes, Your Honor.

The... but the Court in applying even the rational basis standard has not been insensitive to the reality of what the world is like, and to the fact that some groups of... some classifications tend to be involving minorities that have had histories of discrimination against them and that the overall effect of some line-drawing can be very harmful.

In Romer itself, the Court looked at the actual effects of the... of the amendment in the Constitution and all of the many ways in which it caused harm.

Here you have a statute that while it... while it purports to just to regulate sexual behavior, has all sorts of collateral effects on people.

People in the States who still regulate sodomy everyday they're denied visitation to their own children, they're denied custody of children, they're denied public employment.

They're denied private employment, because they're labeled as criminals merely because they've been identified as homosexuals.

And that we submit--

Chief Justice Rehnquist: --If you prevail, Mr. Smith, and this law is struck down, do you think that would also mean that a State could not prefer heterosexuals to homosexuals to teach kindergarten?

Mr. Smith: --I think the issue of... of preference in the educational context would involve very different criteria, Your Honor, very different considerations, the State would have to come in with some sort of a justification.

Justice Scalia: A justification is the same that's alluded to here, disapproval of homosexuality.

Mr. Smith: Well, I think it would be high... high problematic, such a custody case.

Justice Scalia: Yes, it would?

Mr. Smith: If that were the only justification that could be offered, there was no some showing that there would be any more concrete harm to the children in the school.

Justice Scalia: Only that the children might... might be induced to... to follow the path of homosexuality.

And that would not be... that would the not be enough?

Mr. Smith: Well, I... I think the State has to have a greater justification for its discrimination than we prefer pushing people towards heterosexuality.

That amounts to the same thing as disapproval of people's choices in this area and there has to be a more... more reasons and justifiable distinction than simply we prefer this group of people, the majority, instead of this group of people, the minority.

Justice Jackson in the railway express case said very eloquently that the equal protection clause is an important bull work against arbitrary government because it's there to make sure that legislators don't avoid political retribution by imposing onerous burdens only on one minority, but that in fact the majority will live by the same rules as purports to impose on everybody else.

Justice Ginsburg: Mr. Smith before you continue down to the equal protection line.

Your first argument was the right of personal privacy in one's most intimate sexual relations, you were asked and you didn't get a chance to answer because you went back on your equal protection track, you are asking the Court to overrule bowers against Hardwick.

I thought that was very--

Mr. Smith: Yes, Your Honor.

We're asking you to overrule it and we think that the right of... of the fundamental right of unmarried people to make these choices about private adult consensual intimacy applies to different sex couples as well as same sex couples and that Bowers was wrong for essentially three reasons, first it posed the question too narrowly by focusing just on homosexual sodomy, which is just one of the moral choices that couples ought to have... that people ought to have available to them.

And second in its analysis of history, which I think I explained already and third, and perhaps most importantly, in the assumptions that the Court made in 1986 about the realities of gay lives and gay relationships, the Court simply asserted in the Bowers case that there's no showing that has been demonstrated between the opportunity to engage in this conduct and family.

And certainly while it may not have been shown in that case or even apparent to the Court this 1986, I submit it has to be apparent to the Court now that there are gay families that family relationships are established, that there are hundreds of thousands of people registered in the Census in the 2000 census who have formed gay families, gay partnerships, many of them raising children and that for those people, the opportunity to engage in sexual expression as they will in the privacy of their own homes performs much the same function that it does in the marital context, that you can't protect one without the other, that it doesn't make sense to draw a line there and that you should protect it for everyone.

That this is a fundamental matter of American values.

So those are the three reasons we ask you to overrule Bowers v. Hardwick as to the fundamental rights aspect of the case and that we think that that is an area where the Court should go... should go back and reconsider itself.

The Court has now left open for nearly 30 years the question of whether anybody outside has a right... has a privacy right to engage in consensual sexual intimacy in the privacy of their home.

And I submit to you, you know, while the Court has left that unanswered, the American people have moved on to the point where that right is taken for granted for everyone.

Most Americans would be shocked to find out that their decision to engage in sexual intimacy with another person in their own home might lead to a knock on the door as occurred here and a criminal prosecution.

And that... that reality is something that the Court needs into account and certainly in so doing, it shouldn't... in constructing its fundamental rights edifice draw distinctions between gay couples and other couples.

Justice Scalia: --You probably say the same about adultery, you think adultery laws are unconstitutional?

Mr. Smith: I think that the state has--

Justice Scalia: I mean think people probably feel the same way about that, you know.

It may not be a nice thing to do, but I certainly don't expect a knock on the door and go to jail for it.

Mr. Smith: --Your Honor, adultery is a very different case.

It involves the State interests in protecting the marital contract which people voluntarily take on.

And... and so in assessing.

Justice Scalia: Why is the marital contract important to the State?

Because it's the source of... of the next generation, right?

Mr. Smith: Sure, the State is--

Justice Scalia: And you think that there's not some of the same thinking behind the conscious choice of the State to favor heterosexual and marital sex over homosexual sex?

Mr. Smith: --Well, I can understand a law which says we're going to attempt to channel heterosexuals towards marriage by making them... making it illegal for them to have sex without marriage.

I can't understand that law under... under that kind of rational which only regulates same sex couples and says you can't have sex but everyone else has a right to do that.

As for adultery and all of the other parade of horribles which people have raised in their briefs, it seems to me you've got to look at the individual interests and the State interests and their dramatically different in all of those cases incest, prostitution, all of these... bestiality, all of these things either there's very little individual interests or there's very heightened State interest or both, in all of those cases, so the idea that by recognizing the right of all adult couples to make choices like this in their own home the Court is going to open up a whole can of worms, I submit, is correct.

If I could reserve the balance of my time, Your Honor.

Argument of Charles A. Rosenthal

Chief Justice Rehnquist: Very well, Mr. Smith.

Mr. Rosenthal, we'll hear from you.

Mr. Rosenthal: Give me just a moment.

Mr. Chief Justice, and may it please the Court.

The State humbly submits that enforcement of Texas Penal Code Statute 21.06 does not violate the 14th Amendment of the Constitution because this Court has never recognized a fundamental right to engage in extramarital sexual conduct and because there is a rational basis for the statute sufficient to withstand equal protection scrutiny.

I'd like to begin with a brief discussion of substantive due process.

From a practitioner's standpoint, it appears that the jurisprudence of this Court appears to resolve the means by which the Court entertains a claim of novel protected liberty interests.

Since the Constitution does not expressly address the issue of privacy or of sexual conduct, we look to the Court's precedents and to the history of our people.

If a historical, traditional analysis applies, it then serves as objective guideposts to guide this Court, as long as those ideals and laws do not infringe on fundamental rights.

The Court has maintained that designation of a liberty interest is done... not done with impunity.

But only those interests that appear to be carefully identified asserted rights should be drawn and should be considered as liberty interests.

The record in this case does not particularly show which rights the petitioners are asking to uphold.

Justice Scalia: I... I don't understand what you mean by that.

Aren't we clear what right they're seeking to uphold?

Mr. Rosenthal: No, sir, they're... they're asking for the right of homosexuals to engage in homosexual conduct.

Justice Scalia: Right.

Mr. Rosenthal: But there's nothing in the record to indicate that these people are homosexuals.

They're not homosexuals by definition if they commit one act.

It's our position that a heterosexual person can also violate this code if they commit an act of deviate sexual intercourse with another of the same sex.

Justice Scalia: Why aren't... why aren't they seeking to vindicate the right of either homosexuals or heterosexuals to commit homosexual act?

What difference does that make?

Mr. Rosenthal: The difference it makes is as the... as the record is set out, it does not really define the issues such that the Court can actually give the petitioners a... a specific form of relief.

Justice Ginsburg: But the... the... the statute, Texas has already decided that for us.

It has called this homosexual conduct, so whether it's a heterosexual person or a homosexual person, the crime is engaging in homosexual conduct.

Mr. Rosenthal: That's correct.

Justice Souter: You don't even have to get to the... as I understand it, you don't even have to get to the characterization of homosexual.

The statute clearly defines certain acts committed by or together with individuals of the same sex and that's your class, isn't it?

Mr. Rosenthal: Yes, it is.

Justice Souter: What more do we need?

Mr. Rosenthal: We're... the class actually is people who violate the act, not classes of individuals based upon sexual orientation.

Justice Kennedy: Well, I... I can see that your point may have some relevance on the equal protection side of the equation, some relevance, I don't think it may be controlling.

It... it doesn't seem to meet the arguments that's made under the substantive liberty part of the argument with reference to Bowers.

Mr. Rosenthal: I beg your pardon?

Justice Kennedy: It doesn't meet the petitioners' argument with respect to Bowers versus Hardwick, which they say should be overruled.

Mr. Rosenthal: Well, of course we... we believe that Bowers versus Hardwick is... is good law.

It's substantial law and that this Court should not overrule Bowers--

Justice Kennedy: But that question is certainly clearly before us.

I mean this is your statute.

You convicted the people for these acts and you have to be... you have it.

Mr. Rosenthal: --Yes, sir.

And it's our position that Bowers versus Hardwick is still good law, that there's nothing that's changed about the fundamental liberties or the... or the history or traditions of our country that should make the analysis in Bowers incorrect any longer.

The petitioner also claims that the mores of our nation have changed to the point where physical homosexual intimacy is now part of the fabric of American values.

And it's our position this cannot be correct.

Even if you infer that various States acting through their legislative process have repealed sodomy laws, there is no protected right to engage in extrasexual... extramarital sexual relations, again, that can trace their roots to history or the traditions of this nation.

Justice Breyer: Their basic argument, I think--

Justice Scalia: --I... I'm sorry.

I didn't get that argument.

I thought you were going to say... you were responding to the argument that the morals haven't changed, or that the morals have changed so that homosexuality is now approved.

And you respond to that by saying that there's no tradition?

I mean, that's... that's a totally different argument from tradition.

I mean, the... the argument is tradition doesn't matter.

Mr. Rosenthal: Well, history... tradition does not matter in terms of whether or not it... it can be a protected liberty interest.

Justice Scalia: Why... why do you think that the public perception of... of homosexual acts has... has not changed?

Do you think it hasn't?

Mr. Rosenthal: The public perception of it?

Justice Scalia: Yes, yes.

Do you think there's public approval of it?

Mr. Rosenthal: Of homosexuals, but not of homosexuality activity.

Justice Scalia: What do you base that on?

Mr. Rosenthal: I beg your pardon?

Justice Scalia: What do you base that on?

Mr. Rosenthal: Well, even--

Justice Scalia: I mean I think there ought to be some evidence which... which you can bring forward?

Mr. Rosenthal: --Sure.

Justice Scalia: Like perhaps the failure of the Federal Congress to add the sexual preference to the list of protected statuses against which private individuals are not permitted to discriminate, that addition has been sought several times and it's been rejected by the Federal Congress, hasn't it?

Mr. Rosenthal: Yes, sir, and... and in addition, what I was trying to say by the fact that various States have changed their position on sodomy, they've done it through the legislative process.

And that's where we believe this belongs, is in the State House of Texas, not this Court.

Justice Scalia: Yes, but I thought you were responding to the argument that the public perception hasn't changed.

That there still is... is a public disapproval of homosexual acts.

And you can't establish that by saying that the States have repealed their homosexual laws.

Mr. Rosenthal: Well, I think it goes back to whether the... where... whether people in Texas and people in the other States that had this law on their books actually accepted through their representative government.

I think it comes down to the... the actual people who... who determine the consensus and mores of the State or the... or the elected legislators.

Justice Scalia: Might there be a difference between the people's willingness to prosecute something criminally and the people's embracing of that as a fundamental right?

Mr. Rosenthal: Well, certainly.

And just because someone has decriminalized sodomy doesn't mean that they embraced that practice as something that ought to be taught in the schools as was mentioned before.

Justice Breyer: But the argument of... of Bowers, to overrule Bowers is not directly related to sodomy.

It's related, but not directly.

It's that people in their own bedrooms, which have their right to do basically what they want, it's not hurting other people.

And they... the other side... says Bowers understated the importance of that.

It got the history wrong.

It didn't understand the relationship of the sodomy to families and in addition, Bowers has proved to be harmful to thousands and thousands and thousands of people, if not because they're going to be prosecuted, because they fear it... they might be, which makes it a possible instrument of repression in the hands of the prosecutors.

Now, that's the kind of argument that they're making.

Harmful in consequence, wrong in theory, understating the constitutional value.

Mr. Rosenthal: All right--

Justice Breyer: All right, now how do you respond to that?

Mr. Rosenthal: --Okay.

First of all, let me... let me correct something that... that's very minor at this point, but the allegation was made in petitioners' argument that people can... convicted of homosexual conduct are banned from jobs and housing and all... and all that kind of thing.

In Texas, homosexual conduct is a class C misdemeanor.

That is, it is the lowest misdemeanor... or the lowest prohibition that Texas has.

Justice Breyer: That I didn't bring in in my question.

Mr. Rosenthal: Yes, sir.

Justice Breyer: My question was, getting those sort of three or four basic points, I would like to hear your... your straight answer to those points--

Unknown Speaker: [Laughter]

Justice Breyer: --because on their face, they're... I mean, I'm not... not a criticism, I mean, directly responding, directly responding to the... to the... to the question.

Mr. Rosenthal: Well, it's our position that the line should be drawn at the marital bedroom, through which we can... through the law enforcement or anyone else cannot pass unless something illegal happens inside that bedroom.

Justice Breyer: Well, if this is drawing the line at the bedroom door, this case is inside the bedroom, not outside.

That's the statute makes criminal, to my understanding, of it what takes place within the bedroom through consent.

Am I right about that?

Mr. Rosenthal: You're right about that, but--

Justice Breyer: And why isn't that something that the State has no business getting involved in--

Mr. Rosenthal: --First of all, let me say--

Justice Breyer: --as long as it doesn't hurt anybody?

Mr. Rosenthal: --First of all, let me say that consent may alleged in this case, but consent is not proven in the record in this case.

There's... there is nothing in the record that shows that people are capable of giving consent or that consent was, in fact, given, but even given that, I... I think that the... that this Court having determined that there are certain kinds of conduct that it will accept and certain kinds of conduct it will not accept may draw the line at the bedroom door of the heterosexual married couple because of the interest that this Court has that this Nation has and certainly that the State of Texas has for the preservation of marriage, families and the procreation of children.

Justice Ginsburg: Does Texas permit same-sex adoptions... two women or two men to adopt a child or to be foster parents?

Mr. Rosenthal: I don't know the answer to that, Justice.

Justice Ginsburg: Well, in portraying what Texas sees as a family and distinguishing both married and unmarried heterosexual people from homosexual people, those things wouldn't go together if the State said at the same time said same sex couples are qualified to raise a family.

You can adopt children, you can be foster parents.

You don't know what... what the Texas law is on that?

Mr. Rosenthal: I do not know what that Texas law... what the Texas law says in that regard.

Justice Ginsburg: I think it would be relevant to your argument that they're making... that Texas is making the distinction between kinds of people who have family relationships and can be proper guardians of children and those who can't.

Mr. Rosenthal: Well, again, Your Honor, we're not saying that they can't be proper guardians and we can't say that they can't raise children.

That... that's not the issue.

The issue--

Justice Scalia: You're fairly certain that they can't procreate children, aren't you?

Unknown Speaker: [Laughter]

Mr. Rosenthal: --We are sure that they... that they can't do that.

But we're also not... not penalizing their... their status.

We're penalizing only the particular activity that those unmarried couples may have with respect to whether they have sexual intimacies.

Justice Stevens: Does Texas prohibit sexual intercourse between unmarried heterosexuals?

Mr. Rosenthal: Well, it used to.

It does not do that now, unless the sexual intimacy is in public or where someone might view--

Justice Stevens: No, say in a... a private situation like this, it would not... it would not be prohibited?

Mr. Rosenthal: --It does not criminalize it, it does not condone it.

Justice Scalia: What about adultery?

Mr. Rosenthal: I beg your pardon?

Justice Scalia: What about adultery?

Mr. Rosenthal: Again, adultery is not penalized in Texas, but it is certainly not condoned in Texas.

[Laughter]

Justice Breyer: All right, so you said... you said procreation, marriage and children, those are your three justifications.

Now from what you recently said, I don't see what it has to do with marriage, since, in fact, marriage has nothing to do with the conduct that either this or other statutes do or don't forbid.

I don't see what it has to do with children, since, in fact, the gay people can certainly adopt children and they do.

And I don't see what it has to do with procreation, because that's the same as the children.

All right.

So... so what is the justification for this statute, other than, you know, it's not what they say on the other side, is this is simply, I do not like thee, Doctor Fell, the reason why I cannot tell.

Unknown Speaker: [Laughter]

Justice Breyer: Now, what is aside... aside from that?

Mr. Rosenthal: I think what... what I'm saying is... and I had not gotten into the equal protection aspect of the... of the argument yet, but under the equal protection argument, Texas has the right to set moral standards and can set bright line moral standards for its people.

And in the setting of those moral standards, I believe that they can say that certain kinds of activity can exist and certain kinds of activity cannot exist.

Justice Breyer: Could they say, for example, it is against the law at the dinner table to tell really serious lies to your family?

Mr. Rosenthal: Yes, they can make that a law, but there would be no rational basis for the law.

Justice Breyer: Oh, really.

It's very immoral.

I mean, I know there's certainly... it's certainly immoral to tell very serious harmful lies to your own family under certain circumstances and around the dinner table, some of the worst things can happen.

Unknown Speaker: [Laughter]

Justice Breyer: But the... the... so Texas could go right in there and any kind of morality that they think is just immoral or bad, cheating, perhaps.

What about rudeness, serious rudeness, et cetera?

Mr. Rosenthal: Well, again, if... if Texas did pass the law, it would have to... have to show through some rational basis test that it's rationally related to some State interest.

Justice Scalia: Mr. Rosenthal, don't you think that what laws a State may constitutionally pass has a lot to do with what laws it has always been thought that a State can constitutionally pass, so that if you have a 200-year tradition of a certain type of law... and I don't know of a 200-year tradition of laws against lying at the dinner table... the presumption is that the State can within the bounds of... of the Constitution to pass that law in... as declaring what it has proscribed as contra bonos mores, a term that's been in the common law from the beginning as against good morals, bigamy, adultery, all sorts of things like that, and isn't that determined pretty much on the basis of what kind of laws the State has traditionally been allowed to pass?

Mr. Rosenthal: Certainly.

And it goes... it goes to things as diverse as--

Justice Stevens: I don't suppose you're going to argue that Loving against Virginia was incorrectly decided, are you?

Mr. Rosenthal: --Oh, certainly not.

Justice Stevens: And that was certainly a long tradition that supported that--

Mr. Rosenthal: But it also violated a fundamental right.

Justice Stevens: --And that's the issue here.

Unknown Speaker: [Laughter]

Mr. Rosenthal: Yes, sir.

And the fundamental right that was asserted there is... is a long-established fundamental right that we don't... we don't treat races differently because we think that one's inferior or we stereotype someone--

Justice Scalia: There was a constitutional text there, wasn't there, with Loving versus Virginia.

I thought there was something about a Civil War and no discrimination on the basis of race.

Mr. Rosenthal: --Yes, and the same with... with the case that was cited from Florida.

Justice Souter: When... when did Texas select homosexual sodomy as... as a subject of specific criminal prohibition?

Mr. Rosenthal: Sodomy as a... as a--

Justice Souter: My question--

Mr. Rosenthal: --Yes, sir.

Justice Souter: --Go ahead, but my question is--

Mr. Rosenthal: Yes, sir.

Justice Souter: --is about sodomy among two adults of the same sex?

Mr. Rosenthal: Yes, sir.

And sodomy had... has a longstanding tradition of the history of Texas of sodomy being against the law, however--

Justice Souter: When... when was... was the first statute passed?

I think 200 years was mentioned.

Was there a law in the books in 1803?

Mr. Rosenthal: --No, I don't think Texas was a State back then.

[Laughter]

Justice Souter: It doesn't have to be... it doesn't have to--

--Territorial--

Justice Scalia: --It's a trick question, Mr. Rosenthal.

Don't... don't fall into that trap.

Unknown Speaker: [Laughter]

Justice Souter: 1803 or the first date of the Texas legislature's meeting, did they pass it at the... at the first meeting of the legislature?

Mr. Rosenthal: Well, certainly in the... in the 1854 Penal Code, the... the kinds of activity that... that were classified now as sodomy were against the law.

However, I think to address your question--

Justice Souter: When did... when did they single out homosexual sodomy?

Mr. Rosenthal: --In 1973, in the passage of the 1974 Penal Code.

Justice Souter: So the issue here doesn't have much of a longstanding tradition specific to this statute, does it?

Mr. Rosenthal: Well, not specific to... not specific to that statute, but it has a longstanding tradition in Texas as being something that should be proscribed and something that is regarded as immoral and unwholesome.

Justice Scalia: Well, homosexual sodomy was unlawful in Texas from when?

There was not a statute addressed just to that.

It was addressed to sodomy in general, but homosexual... but homosexual sodomy included, and that law goes back how long?

To 1803?

Mr. Rosenthal: To the... to the time that Texas was a republic, before it--

Justice Breyer: But what about the statute which this Court I think had to grapple with, people felt during World War I that it was immoral to teach German in the public schools.

So then would you say that the State has every right to do that, parents want their children to learn German, but the schools forbid it?

See, the hard question here is can the State, in fact, pass anything that it wants at all, because they believe it's immoral.

If you were going to draw the line somewhere, I guess you might begin to draw it when the people is involved inside his own bedroom and not hurting anybody else.

Now that... that now... so you say it's morality.

I... I agree many people do believe that that's a question of morality.

Many do not, but nonetheless, what can you add to what you're saying, other than simply asserting its morality?

Because I don't think you think that the State could pass anything in the name of morality?

Mr. Rosenthal: --Certainly not.

But it would have... any law that would pass would have to have some rational basis to the State interest.

Justice Breyer: You've not given a rational basis except to repeat the word morality.

Justice Scalia: Is the rational basis is that the State thinks it immoral just as the State thinks adultery immoral or bigamy immoral.

Justice Breyer: Or teaching German.

Justice Scalia: Well, that--

Unknown Speaker: [Laughter]

Chief Justice Rehnquist: Maybe we should go through counsel, yes.

Justice Souter: Isn't the... Mr. Rosenthal, isn't the thrust of Justice Breyer's question that when... when the State criminalizes behavior as immoral, customarily what it points to is not simply an isolated moral judgment or the moral judgment alone, but it points to a moral judgment which is backed up by some demonstration of harm to other people.

We... we've heard questions for example about harm to a... a marital institution.

It makes sense to say whether you think the law is enforceable or not.

It makes sense to say that adultery threatens the... the durability of a particular instance of marriage.

On the instance of marriage.

What kind of harm to others can you point to in this case to take it out of the category of simple moral disapproval, per se?

Mr. Rosenthal: Well, part of the... part of the rationale for the law is to discourage similar conduct, that is, to discourage people who may be in jail together or want to experiment from doing the same kind of thing and I think... and I think that the State can do that.

People can harm themselves and still be... and still have it be against the law.

But they can take drugs and do that.

Justice Souter: Well, do you point to a kind of harm here to an individual or to the individual's partner, which is comparable to the harm that results from the... the harm to the deterioration of the body and the mind from drug-taking?

I mean, I don't see the parallel between the two situations.

Mr. Rosenthal: Well, not... not only do we say that morality is a basis for this, but of course the antecedents have raised that there may also be health considerations.

I don't know whether there are or not.

Justice Souter: That is not the State's claim in any case?

Mr. Rosenthal: That's not the State's claim, but I can't say that it's not true.

Obviously this... this has--

Justice Souter: Did you read... I don't know... I can't remember now who filed it, but there was one medical brief filed on that subject and the argument there was that, in fact, these laws are... are directly antithetical to health claim.

Do you... do you have any comment to make on that brief?

Mr. Rosenthal: --Yes, sir.

There was a law filed on behalf of the respondents that took exactly the opposite position.

Justice Souter: So the issue was open, so far as... as we're concerned that that would be your position, I take it?

Mr. Rosenthal: Yes, sir, for each expert there's an equal and opposite expert.

Justice Ginsburg: But you're not saying the State of Texas is doing this for... to protect the actors who are involved in this?

One can say the State is taking action to see that people don't harm others or themselves.

You're not suggesting that that's the reason for... for this particular law?

Mr. Rosenthal: Well, I think Texas has the right to prohibit certain conduct.

Justice Souter: But if that's the reason for it, why doesn't Texas prohibit the conduct in a heterosexual relationship?

I mean, it doesn't seem to be any harm because if there were a harm, beyond moral disapproval, the law would not be restricted to homosexuals.

Mr. Rosenthal: Well, because heterosexual conduct is... the same kinds of conduct... and by the way it's not distinguished, it's still called deviate sexual intercourse with heterosexuals.

Justice Souter: But it's not prohibited?

Mr. Rosenthal: But it's not prohibited.

Justice Souter: Yeah.

Mr. Rosenthal: But it also can lead to marriage and to procreation.

And that's... and that's a legitimate State interest.

Justice Ginsburg: But... but procreation... many people with the blessings of Texas can have sexual relations who are unable to procreate, so I don't see how... whatever the line might have meant in times gone, it certainly isn't true that sexual relations are for the purpose of procreation and anything that is not for that purpose is beyond the pale.

You can't make that distinction.

Mr. Rosenthal: No, but I think as a matter of public policy, the State can make... have... can have preferences... and again it doesn't say that simply because heterosexual people can... can have deviate sexual intercourse, the State approves it.

There are just simply other sanctions that the... that the State may imply.

I did want to briefly distinguish this case from your decision in Romer v. Evans.

And obviously the distinction there was... was that the Colorado amendment sought to classify people based on their orientation and not their conduct.

And by so doing, they excluded a certain class of people from the political debate.

Now, on the contrary, Texas welcomes all into the political debate and... in the last Texas legislature, fortunately our legislature meets only every other year, but in the last Texas legislature, there was a hate crime statute passed which made it a more heinous crime to make someone a victim of crime based upon their sexual orientation and it included all sexual orientations.

It included homosexuals, bisexuals and heterosexuals, all, so I don't think we can say across the board that there's some sort of Texas policy that we're trying to overall discriminate against... against homosexuals as a group.

Justice Ginsburg: Somebody wants to participate in the political process, run for political office who is homosexual and the charge is made on the other side don't... don't vote for this person, this person is a law breaker, there is a closer connection to Romer in that regard, isn't there?

Mr. Rosenthal: Well, that would be true, if it weren't that the historical fact that that's not in fact true.

That there have been people who have campaigned in Texas and have admitted their homosexuality and have been elected to office.

Justice Ginsburg: But the charge... they could be charged as law-breakers.

Mr. Rosenthal: No, ma'am, they can't be charged as law-breakers for having that orientation.

They can only be charged as law-breakers if they commit that particular act.

And then, again, the State does not allow any disabilities to come from class C misdemeanor acts.

I'm sure it's obvious to this Court that the issues of homosexual rights are highly emotional for the petitioner in these quarters but equally anxious in this Court's... for this Court's decision are those who are, number one, concerned with the rights of States to determine their own destiny, and, two, and possibly more important, those persons who are concerned that the invalidation of this little Texas statute would make... would make marriage law subject to constitutional challenge.

Then again, how far behind that can there be other acts of sexual gratification brought for constitutional challenge also.

There's already movements to lower the age limit of consent for children engaged in sexual practices.

And there are secondary effects, particularly in Texas law, where we are a common law state and the common law is based upon community property shared by both spouses.

The State of Texas is asking this Court to be mindful of the far-reaching aspects of your decision in this case, so as not to disenfranchise 23 million Texans who ought to have the right to participate in questions having to do with moral issues.

We ask you to affirm the Texas Court of Appeals.

Rebuttal of Paul M. Smith

Chief Justice Rehnquist: Thank you, Mr. Rosenthal.

Mr. Smith, you have 4 minutes remaining.

Mr. Smith: Thank you, Mr. Chief Justice.

I just have a couple of points to make.

I thought I might address this question of what it was that we proved in the record below and whether or not we have, as a result, adequately teed up the issues before the Court without having put into evidence directly that this was a noncoercive act or a noncommercial act or a nonpublic act or things of that kind.

Our position is that this is a criminal statute that has only two elements, it has a list of particular kinds of sexual intimacy that you're not allowed to engage in and it they have to prove as well that the two people involved were of the same sex.

There was a complaint that was filed that listed those two elements.

My clients pleaded no contest to those two elements but said that there is an insufficient basis for imposing criminal liability on them, because, first of all, they invade fundamental rights and second of all, because the law is discriminatory, while it's supposedly got a moral basis, it's a discriminatory morality, a morality imposed only on one category of couples in a State which does not penalize in any way adultery, fornication or sodomy for people of... of couples that are different sex.

Those are the arguments that were made and... so our position is that that the statute is unconstitutional both facially and as applied here, because the State purports to impose liability based on those two elements alone and that they are constitutionally insufficient bases both for fundamental rights reasons and because it's a discriminatory state.

The other point I thought I might just address for the moment is the public health rationale which didn't come up before.

Essentially, what the facts are... and I think this comes out to a large extent, it's undisputed in the amicus briefing... the issue is not briefed in here because the Texas brief doesn't even attempt to make this argument, but it is... the facts are that if this was the line between safe and unsafe forms of sexual intimacy it's as if the law cuts right across it.

Regulating some of the most safe forms of sexual activity possible, including, for example, lots of safe sex... same-sex activity involving women and leaving completely unregulated all sorts of forms of unsafe sexual activity involving different sex couples.

So if there was ever a case of a law where the fit is egregiously improper and insufficient to justify the law under the rational basis test, this would be such a case.

Unless the Court has further questions, thank you very much.

Chief Justice Rehnquist: Thank you Mr. Smith.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Gonzaga University v. Doe - Oral Argument

Fri, 09 Jan 2009 14:50:23 +0000

Case:

Gonzaga University v. Doe

Media File:

01-679_20020424-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument now in Number 01-679, Gonzaga University and Roberta S. League v. John Doe.

Mr. Roberts.

Mr. Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

In 1974, when it enacted the Family Educational Rights and Privacy Act, Congress conditioned Federal funding for educational institutions on the institution not having a policy or practice of releasing student records without consent.

Congress did not phrase this condition in terms of individual rights.

It did not, for example, follow the model of title IX, enacted 2 years earlier and also dealing with educational institutions, and say something like, no student at a school receiving Federal funds shall have his records released without his consent.

Instead, Congress proceeded more indirectly.

It said that no funds shall be made available to any institution having a policy or practice of releasing student records without consent.

The statute is directed to the Secretary of Education.

He's the one who makes Federal funds available, not to the institution receiving the funds, and certainly not to the individual student.

This Court's cases establish that that is a distinction that makes a difference.

In Cannon, for example, the Court said there would be far less reason--

Mr. Roberts: Mr. Roberts, isn't it primarily a distinction that makes a difference in connection with whether there's an implied cause of action, rather than whether 1983 authorized a cause of action?

Mr. Roberts: --In the implied right of action question there are two questions, did Congress intend to create a right, and did Congress intend to provide a judicial remedy?

In the 1983 context, there are two questions, did Congress intend to create a right, and did Congress intend to preclude resort to the 1983 remedy, so that first question I think is the same under both categories of cases, and as the Court said in Cannon, if Congress phrases the statute as... quote, as a prohibition on the disbursement of public funds, there's far less reason to think that they intended a private remedy.

In addition, purpose speaks in terms of an institutional policy or practice, not individual instances of disclosures.

Again, the contrast with a rights-creating provision like title IX is stark.

Title IX says, no student shall be subject to discrimination, but FERPA doesn't look at what happens to individual students.

It looks at institutional behavior, institutional policy or practice.

Mr. Roberts: The statute does talk about rights of students and rights of parents.

It's, of course, as you say, preceded by the mandate that there shall be no policy, but in this regard it seems to me to be at least more specific than... with references to rights than some of the other funding statutes we've looked at.

Mr. Roberts: Well, of course, the word rights does not appear in the disclosure provision, subsection (b), and in Pennhurst, where the Court was dealing with developmentally disabled bill of rights, the Court explained that just because the statute uses the word rights doesn't mean that it creates a 1983 right.

Mr. Roberts: Yes, I recognize in the one section that we're talking about here you have a stronger argument than the other, but if we assume for the moment would have a 1983 cause of action under the whole act without going down provision by provision, then I do think you have to recognize that the act does talk about rights of students, rights of parents to look at files, et cetera.

Mr. Roberts: Well, first of all, the Court in Blessing said that you don't look at the whole act.

You have to look at the particular provision that is relied upon to create the 1983 right.

Second of all, we're 6 years before Maine v. Thiboutot when Congress passed this, so it's not as if they're using rights as some term of art under the established jurisprudence, and finally, I think Congress can use the term to refer to the opportunity of parents and students to participate in the administrative remedy, to the criteria that the Secretary of Education is to use in deciding whether to terminate funds, without thereby necessarily triggering coverage under section 1982.

Mr. Roberts: Well, I think it's that latter rationale that might be stronger for your case.

I'll be somewhat reluctant to parse through this statute and say there's no right under (b), there is a right under (e), et cetera.

Mr. Roberts: Well, whatever rights, whether you're talking... putting aside the question whether it's a 1983 right or a right to participate in the process that's established under the statute, it is part of the policy or practice that the Secretary of Education is to look to in deciding whether to disburse funds.

The obligation is to the Secretary, not to the institution, and that is made clear when you look at what Congress said about enforcement.

The Congress said, the Secretary shall enforce FERPA, and the Secretary shall deal with violations.

Now, that deal-with-violations language should strike the Court as unusual and, in fact, nowhere else in the United States Code does Congress tell an agency to deal with violations.

It has almost a colloquial tone to it.

Mr. Secretary, FERPA is your problem, you deal with the violations.

There's no suggestion that they would be dealt with by private actions brought in court and, in fact, that conclusion is reinforced when you look at subsection (g), which tells the Secretary, you set up an office to deal--

Mr. Roberts: Whereabouts is this, Mr. Roberts?

Mr. Roberts: --12a of our statutory appendix, Your Honor.

Mr. Roberts: Thank you.

Mr. Roberts: It says to the Secretary, you set up an office to investigate, process, review, and adjudicate complaints about violations under FERPA.

I think this is something--

Mr. Roberts: You say violations of this section.

You tell us that there's no violation of this section unless there's a policy, right?

Mr. Roberts: --There's no violation unless there's a policy.

Mr. Roberts: So he doesn't have to investigate any individual complaint, unless the person comes in and says, not only do they do it to me, but this is their policy, right?

Mr. Roberts: It's evidence that there might be a problem with the school's policy, and this is what makes it different, for example, from the Wright case.

In Wright, the Court said, look, all you can do is terminate funding.

There's no process to bring complaints to the attention of the Secretary.

That's not enough.

Here, Congress said to the Secretary, you set up a complaint procedure, and if someone's got a problem with the release of their records you investigate it, you process the complaint, you review it, and you adjudicate it, and what has happened is that complaints have come in, and the Family Policy Compliance Office have gotten responses from the university, and voluntary compliance has ensured that the policy and practice of the institution complies with the Secretary's view.

Mr. Roberts: I guess that that's all that the plaintiff could accomplish in court anyway.

The plaintiffs here don't contend that they would be entitled to recovery if there is no policy or practice.

Mr. Roberts: That's correct.

That's correct.

Mr. Roberts: So the Secretary's enforcement authority is coextensive with what the court did.

Mr. Roberts: In terms of the scope of liability--

Mr. Roberts: You'd need an allegation of a policy or practice.

Mr. Roberts: --Exactly, but it is the fact that Congress focused on the policy or practice that helps establish that they were not concerned with individual instances of disclosure.

It is odd to speak of a distinctly individual right being protected when whether it's protected or not depends on whether the school does the same thing to others.

That looks more like a systemic concern, not an individual concern, and it's the--

Mr. Roberts: Well, Mr. Roberts, why are they mutually exclusive?

The Secretary has this authority, and I think your argument would be more impressive if this were a large operation.

On the one hand you say, the courts, that the institutions will be harassed by all these lawsuits across the country, and yet this one agency that you are saying will take care of it, this centralized administration, we're told that as of 2000 it had all of seven staff members in that entire office, hardly a number that is likely to be able to handle a lot of complaints.

Mr. Roberts: --It's very important to keep in mind the distinction between how matters are handled before the Family Policy Compliance Office and in court.

FERPA places a premium on voluntary compliance, on informal and inexpensive adjudication.

A 1983 damages action in Federal court doesn't.

The statute says the Secretary shall deal with violations, not the court.

The Secretary says... and the statute goes on to say, we're going to tell you how to deal with individual complainants.

They don't go to court, either.

They go to the office that's set up by the Secretary, and there they will find an informal, inexpensive procedure in which people can quickly find out what the school's answer is and, in a case in which it suggests that there's a policy or practice problem, secure voluntary problem.

Mr. Roberts: Do we know from the... maybe the Solicitor General can tell us... if the seven people are overworked?

Mr. Roberts: In fact, in practice most of what they do is field questions from the school, how do we handle this situation, what do we do about this?

Mr. Roberts: But how do you get a stop order?

One of the points that were made is that if records are about to be divulged to, say, a newspaper, and the student or the parent wants an immediate stop order, you can go into court and get a TRO.

There's nothing comparable in the Secretary's arsenal that has that kind of muscle behind it, is there?

Mr. Roberts: There certainly is.

The first thing, if you're a student subjected to that, what you would do is call the Family Policy Compliance Office and the Secretary, keep in mind, has the cudgel of terminating funding behind the most informal telephone call or correspondence.

Schools respond to what the Secretary of Education tells them to do with respect to FERPA, because they appreciate the sanctions that can be brought.

That's the way the system has worked effectively since FERPA was enacted.

Mr. Roberts: This office can't really give relief to any individual, however, right, except to tell the school not to release, wrongfully release records in the future, right?

Mr. Roberts: The focus of the office is in vindicating what the statute provides.

The statute is directed to institutional behavior.

The office reviews complaints in order to secure compliance with the proper policy or practice.

Mr. Roberts: So all--

Mr. Roberts: It is... it is--

Mr. Roberts: --All you have to do is eliminate the policy, and everything that's happened in the past is water over the dam--

Mr. Roberts: --Because--

Mr. Roberts: --and go and sin no more is what the Secretary says, right?

Mr. Roberts: --Because the statute is directed to prospective compliance, not retrospective compensation for injuries.

That is a different focus than section 1983.

The 1983--

Mr. Roberts: What do you do about the language where it says, no funds shall be made available to a school that effectively prevent, et cetera, the student... it says, of the right to inspect.

It says of the right to inspect right in the first sentence, and then later on it says in (b) no... or later on it says that you have to tell the parent in (e) of the rights accorded them by this.

I mean, that's the same question, but I want to get... that others have asked, but I want to have very clear in my mind the specific answer.

It says, we won't give you any money if you interfere with the right.

Now, that sounds as if there's a right, and then they underline it by saying, and you have to tell them about the right, and what's... your direct response to that is what?

Mr. Roberts: --The direct response is that... you left out words in the quote, which is that no funds shall be made available to an institution that has a policy or practice, and the question is, is Congress focusing on protecting individual rights in, as the Court said in Blessing, an individual way, or are they addressing a systemic concern.

The policy, or the focus on the Secretary... this statute is directed to the Secretary.

Don't make funds available, and it says, look at the policy or practice.

It's not written the way title IX is, which would suggest the conferring of an individual right.

Secondly, you're quoting from subsection (a).

Subsection (b) does not talk about rights.

And finally, the answer--

Mr. Roberts: Well, but Mr. Roberts, let me just be sure I understand your answer.

I have the same problem Justice Breyer does, because in 1232g(1)(B) on page 2a, no funds and so forth shall be made available if the agency has a policy of denying or effectively prevents the parents of students the right to inspect.

Now, is the right to inspect a Federal right?

Mr. Roberts: --I think not, because--

Mr. Roberts: What is its source?

Mr. Roberts: --The right to inspect is not an independent and freestanding right.

It is a description of the sort of policy or practice that should prompt the Secretary of Education to withhold funds.

In addition, this is not the provision that's at issue in this case.

Subsection (b)--

Mr. Roberts: Well, I understand, but your initial submission is that this is not a rights-creating statute, it just... but I don't know where the right comes from that they refer to in that section and also in... on 12a informing parents and students of rights under this section.

Mr. Roberts: --Under this section.

I think Congress can use the term, rights, to refer to the opportunities that are provided to the parents and students and to the criteria that the Secretary of Education will look to in deciding funding, without thereby triggering coverage under section 1983.

Just like in Pennhurst, Congress used the word rights repeatedly in--

Mr. Roberts: But do you think that they would have had the rights described herein even if this statute had not been passed?

Mr. Roberts: --No.

There would not have been... no rights are conferred under this statute.

What is conferred is discretion on the Secretary of Education to withhold funds depending upon a policy or practice.

In describing the policy or practice that should trigger action by the Secretary of Education, the statute refers to opportunities that must be provided to parents and students by that institution, but in doing so I don't think Congress is necessarily triggering the right to a damages action.

Mr. Roberts: You use the word opportunity in the statute wherever the statute used the word rights.

Mr. Roberts: Well, the statute doesn't use the words right under subsection (b).

The statute in Pennhurst was called the Bill of Rights, and this Court concluded that that did not confer rights.

The question is whether Congress acted in a way that indicated an intent to confer an individually enforceable right.

Mr. Roberts: Mr. Roberts, you said that 1232g(b) is not the section at issue here.

Mr. Roberts: No--

Mr. Roberts: What section is the one at issue?

Mr. Roberts: --1232g(b) is the section at issue.

Justice Stevens and Justice Breyer were quoting from 1232g(a).

(a) refers to rights, (b) does not.

Mr. Roberts: Well, but (b) does say, the parents of students the right to inspect and review.

Mr. Roberts: That's (a), Your Honor.

That's 1232g(a)(1)(A).

Mr. Roberts: (b) is on 6a, I gather is what you're--

--Oh, (b) is on--

Mr. Roberts: (b) is on 6a, and it does not refer to rights.

Mr. Roberts: --Okay.

Thank you.

Mr. Roberts: Thank you, Your Honor.

Mr. Roberts: Ms. Millett, we'll hear from you.

ORAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Ms Millett: Mr. Chief Justice, and may it please the Court:

If I could begin by responding to Justice Kennedy's question about whether the Family Policy Compliance Office is overworked, I will tell you that they do work very hard, but they handle... for a small staff, they handle an amazing amount of work, and have been doing so for 28 years under this statute.

They handle over 900 pieces of correspondence a year, up to... close to 100 of things that are formally categorized as complaints as they go through the investigation stages.

Mr. Roberts: Three letters a day, I guess.

Ms Millett: Hmm?

Mr. Roberts: That's three letters a day.

Ms Millett: Yes, but they also... I'm not done with my... forgive me.

[Laughter]

They have about 300 phone calls a month, and well over 1,000 e-mails a year to--

Mr. Roberts: That's 10 phone calls a day.

[Laughter]

Ms Millett: --That's right, and well over 1,000 e-mails, and I think one of the reasons that there isn't... I mean, if you look at the legal landscape out there, too, there hasn't been an enormous volume of 1983 actions, and that is because the Secretary has been very successful, I think, in communicating and enforcing this in an informal manner with the universities.

The universities wish to comply with this, and a lot of it is... we've had 28 years now to explicate what this statute means and to clarify what it means.

Now, I fear that may change if this Court were to recognize a 1983 action--

Mr. Roberts: What is your opinion about the idea that this could be bifurcated, that it orders a right to inspect, that isn't going to be too tough, you let the person look at the record, but there's a policy of disclosure.

Does that make sense in terms of the statute to say there's a private right under (a) but not under (b)?

What's your opinion of that?

Ms Millett: --Okay, I'll answer that in two stages.

It makes sense to bifurcate analysis as a matter of this Court's 1983 precedents, and specifically that's exactly what the Court did in the Blessing case, which is your most recent case up here.

As a whole, we don't think it actually makes sense to do so under this statute.

The Court may not decide that today because the only provision at issue is subsection (b), which does not refer to rights and focuses on policies or practices, but our position is that there are three mutually reinforcing features here, both in (a) and (b), that show there is not a right under 1983, and that is... even under (a), the very beginning of the sentence, and the operative command is that no funds shall be distributed, or shall be distributed by the Secretary of Education, and that is distinctive, unique language that this Court recognized, suggested in Cannon, and held just last term in Sandoval.

It's not the type of language Congress would use to create individual rights and in particular, in 1974, 2 years after title IX was enacted, Congress chose different, distinctly different language that is very uncommon in the U.S. Code.

Mr. Roberts: If you go through the first three factors listed in Blessing, Congress intended to benefit the plaintiff, and it not be beyond judicial competence--

Ms Millett: Not not be--

Mr. Roberts: --and there must be an unambiguously binding obligation on the State, it would seem to me that those are met here, and that you then have to go to the next part of the test which is... that creates a presumption that there is a right.

Ms Millett: --Well, as we said in our brief, we think that the problem here is not that it's vague or amorphous, and it's not that there's not binding obligations, which is the second two prongs of the Blessing test, but the first prong of the Blessing test, while phrased in terms of benefiting individuals, the Court made clear in Blessing it's not just a general inquiry if it's of some good to people, because all legislation is of some good to somebody.

It is whether it creates individual entitlements, and that's where we think this statute fails, a statute that--

Mr. Roberts: Well, with reference to the other parts, the non-(b) parts of the statute, it does seem to me that it talks about the student and the parent in very specific terms, and it uses the term, rights.

Ms Millett: --Well, again, this Court made clear in Pennhurst that you can't just look at the word right in isolation.

You have to put it in context, and there are some important contexts I would like to stress, again even up through subsection (a).

The right begins with... it begins with the no-funds command.

The focus is on a policy, system-wide basis, and even when it talks about rights, it's not an individual right, it is the... the education records of the children... I'm sorry, I'm reading from... this is my appendix.

I hate to confuse the Court, to my brief, at 1a, where subsection (a) is, and there has to be a policy of denying or effectively preventing the parents of students, plural, access to these records, so we think that makes clear that you have the same programmatic, system-wide rule here, and in fact the Secretary's position is that if you had one instance of a failure to allow someone access to records during nonpolicy or nonprogram-wide failure to allow access to records, that would not violate FERPA.

The command is still... it's written differently.

I mean, the statute was put on, was enacted on the floor of Congress.

It didn't have long hearings where people sort of labored and struggled over precise language, but it contains--

Mr. Roberts: May I ask you... it's really the same question I asked Mr. Roberts, I suppose, but the first sentence of 1232g(a)(1)(A) refers to a policy of denying access, denying the right to inspect and review education records.

In your view, is that right a federally created right, or is that a right created by some other source and, if so, what is the source of the right?

Ms Millett: --I'm sorry, I'm having... there were too many numbers in that.

g(1)--

Mr. Roberts: it's the first sentence of 1232g on page 2a of the blue brief, and the first, very first sentence in the statute ends by saying the right to inspect and review the education records of their children, and my question is whether you think that is a federally created right and, if not, what is the source of that right?

Ms Millett: --I think it's not... I have two answers.

First of all, whatever it is, it's a collective, program-wide, aggregated right, because it speaks in the plural, but secondly it; 's not... I think it is used as Mr. Roberts said here in a shorthand way, and the legislative history says that one of the things they were trying to enforce here is what Congress considered to be pre-existing moral or legal--

Mr. Roberts: Let me be sure you have my question in mind.

Do you think the right to which the statute refers is a federally created right, or right with a different source?

Ms Millett: --I think what the statute is creating there is a Federal overlay to protect pre... as was said in the legislative history on page 17 of our brief, preexisting legal or moral right.

Mr. Roberts: So that if a school came back and said, in our State there's no such right, then the statute would not apply?

Ms Millett: Congress felt that when it said preexisting moral or legal rights, there was a sense of Congress that this is a type of, not in a bright sense that we use for purposes of 1983 actions, but the legislative history was that Congress had a sense here that this was something all individuals should have.

But this--

Mr. Roberts: It is something they should have by reason of this statute, and therefore it's created, or by some preexisting rule of law in some... at some other source?

Ms Millett: --Well, Congress' language was preexisting moral or legal rights, and so I'm not sure what one considers--

Mr. Roberts: If it's another source, it seems to me that the State or the institution could say, in this locality there is no such right, and that would make the statute totally inapplicable.

Ms Millett: --No, it wouldn't, because what you still have is, once you take these funds you have a Federal overlay.

Once you decide to take these funds your prior law doesn't matter, which you have--

Mr. Roberts: It's a Federal overlay on a nonexistent right, if I understand you correctly.

Ms Millett: --Well, there's a... there is... there's no doubt that there's a Federal level of protection here for privacy, and it's at an aggregated, collective system-wide level.

It's not at the individual level of--

Mr. Roberts: But you use the word overlay, Mr. Roberts used the word obligation, you stay away from the term, right, in the statute.

If we followed Justice Stevens' line of questions and concluded that there is a Federal right, would you necessarily... would your position... would that be fatal to your position, or would you say it's a right that can be enforced through a comprehensive administrative scheme?

Ms Millett: --In two ways it wouldn't.

It's not at issue in this case, and the second argument is that the nature of the... whatever the nature of the right is that's created here, Congress has created the very type of scheme that it thinks is appropriate to enforce these collective, aggregated, system-wide rights that it created here, that in fact--

Mr. Roberts: Well, are you in effect saying, as Mr. Roberts did, I think when he used the word, opportunity, that this is kind of, that the scheme of this section is sort of an if-then sort of scheme.

If you deny them the opportunity then... and you do so on a systemic basis, then the Secretary will take, or should take certain action.

Is that... you are saying essentially the same thing that he did.

Ms Millett: --Yes.

Mr. Roberts: So when you say there's a Federal right, you really mean there's an opportunity.

If the opportunity is denied, then certain administrative action can be taken.

Ms Millett: That's right.

There's a Federal obligation... to use Mr. Roberts' words, a Federal obligation, once you take these funds, to not have system-wide practices or policies that either deny access or, in this case, disclose without consent, or an authorized basis for disclosure, and I think it's very... again, very unique language.

You have... you didn't have to look at the two separately, but when you combined the no-funds language and the focus on system-wide policies and practices, that this Court made clear in Blessing that type of aggregate language doesn't create individual lights... rights, excuse me, and then you marry to that the fact that Congress has enacted an administrative scheme that is directly responsive to that type of system-wide overlay, there should not--

Mr. Roberts: Thank you, Ms. Millett.

Ms Millett: --thank you.

Mr. Roberts: Ms. Brinkmann, we'll hear from you.

ORAL ARGUMENT OF BETH S. BRINKMANN ON BEHALF OF THE RESPONDENT

Mr. Brinkmann: Mr. Chief Justice, and may it please the Court:

In FERPA, Congress gave parents the right to prevent the release of certain educational records.

That's evident from Congress' choice of words and the structure and history of the statute.

There are at least five indications of that intent, including references to rights under that provision, which I'll get to in a moment.

It involves reading two sections together.

First, in section... this is on page 9a of the red brief, at the very top.

In 1232g(b)(2)(A), at the top of page 9a, Congress prohibited a recipient from having a policy of releasing education records, quote, unless there is written consent from the students' parents.

Congress did not say, unless there is a policy of obtaining written consent.

Congress thereby--

Mr. Roberts: Now, you're reading from 9a, Ms. Brinkmann?

Whereabouts on page 9a?

Mr. Brinkmann: --At the very top, Your Honor, paragraph 2 begins that no fund shall be given to an agency, and explains that has a policy or--

Mr. Roberts: --see it either.

I'm looking at page--

--I think she said red brief.

9a of the red brief.

Mr. Brinkmann: --It's on page 8a of the--

Mr. Roberts: You're switching briefs on us.

Mr. Brinkmann: --I'm sorry.

[Laughter]

It's on page 8a of the blue brief, if you prefer that.

The problem is, there are other provisions in here I need to refer to.

At the very top of the page, it explains that no funds shall go to a school that has a policy of releasing information, and at the end of that first paragraph, quote, unless, and then we go to subparagraph (A), there is written consent from the students' parents.

Congress did not say, unless the school has a policy of obtaining consent.

Mr. Roberts: Yes, it does.

It says no money will go to an educational agency or institution which has a policy or practice.

Mr. Brinkmann: Unless.

Mr. Roberts: Unless.

Mr. Brinkmann: Yes.

Mr. Roberts: Now, if you don't have a policy or practice, the whole provision doesn't apply.

Mr. Brinkmann: If you don't have a policy or practice of releasing information other than under the preceding (b)(1), you're correct, Your Honor.

Mr. Roberts: The whole thing wouldn't apply, so I don't--

Mr. Brinkmann: And (b)(2)(A) is... (b)(1) says you can't... a school can't have a policy of releasing without consent, other than to certain categories.

Mr. Roberts: --It's a question of whether you read the word policy, what policy?

I think Justice Scalia is reading it as, what policy?

Mr. Brinkmann: It's a policy--

Mr. Roberts: A policy of releasing records without written consent.

Mr. Brinkmann: --That's not what not... that's not what (b)(2)(A) says.

That language is not... that is, the without consent is in (b)(1).

It's not in (b)(2).

It says, has a policy or practice of releasing or providing access to any personally identifiable information, other than direct information, or is permitted under paragraph (1).

That's what paragraph (1) does.

It permits a laundry list of releases where Congress said, we're not going to require parental consent.

School educators need this information.

(b)(1), no problem, you get all of this information without parental consent.

Other than in those situations, if you have policy or practice, then the school decides--

Mr. Roberts: I'm really not following you.

What do you think the unless goes to?

I take it that the unless goes to, no funds shall be made available.

Mr. Brinkmann: --Yes.

Mr. Roberts: Unless.

Mr. Brinkmann: Yes.

Mr. Roberts: Okay.

Mr. Brinkmann: So--

Mr. Roberts: But that whole provision, no funds shall be made available, only applies to an educational agency or institution which has a policy or practice of releasing.

Mr. Brinkmann: --Absolutely.

Mr. Roberts: If it doesn't have a policy or practice of releasing, it's entirely exempt from that provision.

Mr. Brinkmann: That's correct, Your Honor, because they did not... Congress did not intend to go after inadvertent releases.

For example, the school makes a decision if they are going to have a policy of releasing information to a scholarship program, or to the press, and if they have a policy release, they have to abide by this very specific requirement in (b)(2)(A).

Mr. Roberts: Well--

Mr. Brinkmann: They may choose not to.

It's parallel to the directory information provision in the statute.

Congress also said, you, school, can make a choice.

If you want to release things like names, classes, awards receipts under the directory information provision, you can make that decision.

You have to give notice at the beginning of the year, and you have to give parents enough time to respond whether or not they want to opt out of that.

Same thing under (b)(2)(A).

If you as a university decide that you want to have a policy or practice of releasing things beyond what is already authorized under (b)(1), which includes other teachers, emergency situations, Federal officials, all kinds of situations, then you have to abide by (b)(2)(A), and you cannot have that policy or practice unless there is written consent from the students' parents.

Mr. Roberts: --But it appears to be a scheme, at least as I read it, just directed at when Federal funds are going to be given to a school, and you determine that by whether the school has a particular policy or practice, and the remedy is withholding funds.

I don't see how you extrapolate from this statute the intent to create a private cause of action for damages.

Mr. Brinkmann: Your Honor, in addition to the language, unless there is, our position is, because there is that requirement, unless there is written consent from the parent, Congress intended to directly benefit the parents and to say to the parents in a particular situation, you can say no, I don't want this information released.

Parents may have different decisions based on whether or not they think it will benefit the child.

Mr. Roberts: But they can't do that, because I mean, if the information is released and the parent says, I object, the institution can say, oh, I'm sorry, that was just a mistake.

We don't have that policy.

You know, we released it.

Too bad.

We don't have the policy.

So there is no absolute right on the part of the parent to prevent it.

Mr. Brinkmann: There is, Your Honor, because the... if they do have a policy and practice, it's akin to the standard that the Court adopted in Gebser, and here Congress did that.

They said, we are not going to charge every institution with inadvertent release, but to the extent, as under Monell, if there is requisite knowledge by the school that they have a policy or practice, they're intending to be releasing information, they are charged with getting the consent from the parents, and again I have to--

Mr. Roberts: The consequence, if they don't get consent from the parents, the express consequence is no funds shall be made available.

Mr. Brinkmann: --Which is the commonality in all of the Spending Clause cases that have come before the Court, Your Honor.

Mr. Roberts: Ms. Brinkmann, but not the emphasis, as was pointed out by Mr. Roberts.

Title IX, title VI say, no person shall be, and this starts out with no funds.

Do you have any statutes, any spending statutes that uses the no funds shall, instead of no person shall be denied, where this Court has either implied a private right of action, or has found a right which 1983 can then be used to enforce?

Mr. Brinkmann: Well, Your Honor, there's never been a formula.

None of the statutes where the Court has found a right has included that language, Wright, Wilde, or Blessing, none of them have the language the petitioner and the Solicitor General now urges.

In fact, in footnote 12 of the Suter opinion the Court contrasted the language where they were not finding a right to a statute that, quote, said, no Federal payment may be made under this part, and they said, now, there's a specific requirement, so there's no formula.

None of the courts have had this language that they're now urging.

The Suter opinion refers to this type of language as being more specific, and it doesn't as a practical matter make any difference what these Spending Clause statutes do say.

If you receive Federal funds, you have to abide by these conditions.

Mr. Roberts: I'm not sure that I gave you my question precisely.

There are title VI, title IX, statutes that use the formula, no person shall, and under those statutes a right of action has been implied, and what I'm asking is, is there any statute with the language, no funds shall, where a right of action has been implied?

Mr. Brinkmann: No statute of that language has ever come before the Court, Your Honor, and all I'm saying is, there are many other cases in which statutes have been found to accord rights under section 1983 that don't have that no-student-shall language.

Mr. Roberts: What about... you say, you agree there is no example of a case we've decided where the term is no funds shall?

Mr. Brinkmann: That statute has not come before the Court.

I have to say in the title IX and title VI context, it was a broader inquiry of whether or not there was implied cause of action, but in Your Honor's opinion, in Suter, in footnote 12, it does refer to this type of statute and suggests that that is a direct requirement.

Mr. Roberts: If I may--

--Well, where is the statute... the footnote you're quoting speaks in terms of, or addresses the no funds shall?

Mr. Brinkmann: The precise language in that statute which is quoted in that footnote says that no Federal funds payments shall be made, Your Honor.

It's on page 361 of the opinion, and it's citing 42 U.S.C. 672(e) that says, quote, for example, no Federal payment may be made under this part, and then it goes on and it says that that is an example of more precise requirements as contrasted to the statute in Suter.

If I may, there are four other provisions I'd like to speak to in addition to the language, unless there is.

In addition, again on page 9a under (b)(2)(A), it's not just unless there is written consent.

That consent has to have included a provision of a copy of what is intended to be released by the school to the parents.

The parents have to be told why the information is being released, and the parents have to know to whom it is being released.

That is exactly what the Court referenced in Blessing about Congress addressing the particular need of the individuals who they're according the rights to.

They knew that parents were going to be able to need to know why the information was provided, exactly what it is, and to whom.

Parents may think it's fine to release financial information, personal information about their household for a scholarship or an honorary award purpose, but not, for example, to a newspaper story about low income families in the school district.

Third, the history of the... before I go to the history, actually, I want to explain another provision of the statute which I think--

Mr. Roberts: Two more.

You have two more coming.

You said you had four.

Mr. Brinkmann: --Yes.

Yes.

Actually, I'm going to jump in, though, because this responds to questions of the Court about the use of the word, right.

If you could turn to page 12a in the red brief, subsection (d), 1232g(d), is entitled,

"Students Rather than Parents' Permission or Consent."

That clearly references the permission or consent under (b)(2)(A).

That is where this permission or consent is referenced in FERPA, and it explains there the purpose of it, to explain that when a student becomes 18, as the student here was, or attending a school of higher education, the permission or consent required, and the rights accorded to the parents of the students, shall be required in accordance... (b)(2)(A) gives the student, requires permission or consent, and then gives the right to deny permission or consent.

That is a direct reference to the rights under (b)(2)(A).

Moreover, as members of the--

Mr. Roberts: So we have right, the word right used in (b) as well as in (a), or at least with reference to (b) as well as with reference to (a).

Mr. Brinkmann: --Much more precisely, Your Honor, here, because they are specifically talking not just about (b) generically, but about permission or consent.

Mr. Roberts: Why does right refer to (b)?

I mean, rights could refer to (a).

Mr. Brinkmann: Because the whole provision of (d) refers to permission nor consent, Your Honor.

There is no permission or--

Mr. Roberts: No, it says permission or consent of and the rights.

Mr. Brinkmann: --Yes.

Mr. Roberts: So--

Mr. Brinkmann: Yes, but--

Mr. Roberts: --(b), the first is this, and the other is that.

Mr. Brinkmann: --But if you look at the structure of the provision, they are referring to the actual permission or consent, because that's when you would need to know, do I go to the... when I... for a college student, do I go to the--

Mr. Roberts: The right to inspect after he's 18 is a right that goes to the student, not to the parent.

Mr. Brinkmann: --But Your Honor, this is specifically addressing the permission or consent provision.

You can tell by the heading of subsection (d).

Moreover, under (e), as Your Honor pointed out before, the school is obligated to inform parents or students of their rights under the regulations promulgated by the Secretary of Education.

One of the rights they are required to inform parents and students about is the consent--

Mr. Roberts: Ms. Brinkmann--

Mr. Brinkmann: --required there.

Mr. Roberts: --Where does it say that?

Where does it say that?

Mr. Brinkmann: It would be in the regulations, Your Honor.

Mr. Roberts: In the regulations, okay, fine.

Even if we say that you met the three Blessing standards, Blessing still kind of said in that opinion, there's something more, and the more is what seems to be the strongest emphasis of the case that Mr. Robert and Ms. Millett made, and that is that Congress created an enforcement scheme that they meant to be it, that would be incompatible with individual enforcement.

Mr. Brinkmann: Actually that, ironically, leads me to my third point, in fact.

When you look at this history, Congress clearly was addressing the interest of parents in controlling dissemination of information about their children.

This is a paradigm example of what they were worrying about, information that's gossip, unsubstantiated, never had a chance to respond to it, could have a devastating effect on a student's career.

Under petitioner's interpretation--

Mr. Roberts: But the issue isn't whether they were worried about that.

The issue is whether they wanted to eliminate that worry by having the Secretary police the thing, or by having lawsuits to vindicate private rights.

Mr. Brinkmann: --Yes, Your Honor, and I think--

Mr. Roberts: I don't see how you advance the ball at all by saying what they were worried about was precisely this thing.

I mean, I think Mr. Roberts would stipulate that.

Mr. Brinkmann: --Well, it was the point that Justice Ginsburg brought up before, which actually I think responds to your inquiry.

Under petitioner's interpretation, if this student had found out that this information was about to be released, information he could prove was false, he would have no avenue to prevent the release of that.

There was no method at the Department of Education to provide any individual remedy, let alone our TRO, and I think that that's even magnified by--

Mr. Roberts: It may not be the ideal remedy.

It may not be the best remedy, and one of the anomalies here that wouldn't be present in title IX is working through 1983, where you must have a State action pegged.

Now, here, it happened that there was a connection with a State, with a State officer.

The conversation was between private institutions and State officer, but suppose we have two schools, and one is about to give a record to a newspaper, and the other is about to do the same thing, and one is the State university, and one is the private university.

Under your scheme, the private university would be home free, it wouldn't be subject to 1983 liability, but the public would, and I think that would be a strange scheme for Congress to enact.

Mr. Brinkmann: --Your Honor, actually it's much more complicated than that.

It's just not whether or not suits are available against public or private, because, of course, State universities are often deemed arms of the State, so they're not subject to suit at all.

The only action that can be brought against a State official is for injunctive relief.

Moreover, most private elementary and secondary schools, as was pointed out in the amicus brief in support of respondent, don't receive Federal funding, so there are a lot of different ways in which there may be different actions, but that is because of 1983 Eleventh Amendment--

Mr. Roberts: Well, maybe that shows that 1983 really doesn't fit this pattern, because why... even, why should certain kinds of institutions be stopped, and others not, from doing the same thing?

Mr. Brinkmann: --Because the relationship of students at the private school is different than a relationship with a public school.

A relationship of a student at public school is defined by State law.

It is... and that's what an action under 1983 is, it's under color of State law.

Mr. Roberts: But doesn't the student have the same, whether we're going to call it right or opportunity, in the private school with respect to records, like a private university?

Mr. Brinkmann: Only if the school receives Federal funds.

Secondary and elementary--

Mr. Roberts: Which an overwhelming number of schools do.

Mr. Brinkmann: --Only universities, Your Honor.

Actually, the amicus brief of the ACLU cites a letter from the Department of Education explaining that the vast majority of private schools, elementary and secondary, do not receive Federal funding, but if I may, I think that the important point here is, the relationship of a student with a private school is different.

There is a contractual relationship there, and there may very well be other remedies against a private school arising out of... for example, here in Exhibit 1 at the trial, the handbook, Gonzaga promised to abide by FERPA and said, we will not release information without your consent.

There could be a contractual action there.

You can't have those kinds of actions against a school, public school.

That's why Congress created section 1983.

There was--

Mr. Roberts: Ms. Brinkmann, can I come back to your assertion that there is no right to an injunction, you can't get an injunction under this act, but you can't get an injunction, even if we accept your theory of the act.

You cannot get an injunction unless you show not only that they're about to release this information, but also that this is their practice or policy.

Mr. Brinkmann: --Absolutely, Your Honor.

Mr. Roberts: Isn't that right?

Mr. Brinkmann: Absolutely, and--

Mr. Roberts: So what good does that do you?

You have to go in--

Mr. Brinkmann: --Because in this case you needed the testimony of one witness--

Mr. Roberts: --Which suggests that you're not vindicating a private right of yours, that somehow what Congress is concerned with is the existence of a policy or practice that it doesn't like, even though--

Mr. Brinkmann: --With all due respect--

Mr. Roberts: --Even though you're being harmed by this release, under your theory you can't get an injunction against it.

Mr. Brinkmann: --I respectfully disagree.

Mr. Roberts: Unless you show that there's a policy or practice.

Mr. Brinkmann: You absolutely could get an injunction, Your Honor.

Mr. Roberts: How so?

Mr. Brinkmann: Because you needed the testimony of one witness in this case who said, we do this all of the time.

We disclose information to the State agency before--

Mr. Roberts: You need that witness, and if you don't have such a witness, you cannot get an injunction, isn't that right?

Mr. Brinkmann: --That's right.

That's a matter of proof, and Your Honor, what... I just have to emphasize that what the provision here goes to with the policy and practice in (b)(2)(A) is Monell, Gebser, it is Congress saying, we're not going to charge every university with this requirement.

If they have a policy or practice, if this decision is made at a high enough level that they would have requisite knowledge, that's the only place in which this section 1983 liability would be triggered.

Mr. Roberts: Is there... can I ask you one question on the practicality?

Assuming all the language is ambiguous, et cetera, and I would like you to remove this image from my mind, the image that I have in my mind was an earlier case argued here in this Court, and as a result of the lawyer's argument in that case I focused on the language, educational record, and I realized it's a close question, perhaps, as to whether those words do include things like a gold star the third grade teacher might give out in class, or the statement, you're going to get a bad mark on your report card.

I suddenly realized it's highly ambiguous, and the lawyer said that he had been cross-examining the school officials on this and related questions in the courtroom for several hours, I thought.

I mean, at least for a time, and suddenly it occurred to me, how are they teaching or running the school district, and the image that came up in my courtroom was of private actions all over the place trying to bring into court school officials to interpret language which really doesn't explain itself.

Therefore, a need for centralized administration, which of course would be harmful to some parents, but counterbalanced by the need for effective school administration, and those were the things in my mind, and that's the image it called up, and I want you to reply to that, because I think that's at the heart of this, at least the practical part.

I think I have at least five answers.

I haven't counted them off.

First of all, I think it's important to realize that that's one of the reasons you have the particularized examination in Blessing.

We are not saying there's a right under every one of these provisions, but if you look at (b)(2)(A), unless there is the specific requirement, the history of it, and also if you compare it to the other release provisions that do not have this kind of right, they say you have to notify the parent, or you have to make the person who's getting it promise to destroy it when they're done with it.

They don't have this right.

So if you look at this particular right, then you step back and you realize what the Department of Education has been saying.

Schools comply with this statute.

It is clear and simple.

You give them a copy, you ask the parents... tell the parents why and to whom it is going.

In the 28 years since this statute has been enacted, there has been no flood of litigation, despite the fact that the Second Circuit, I think 15 years ago, held that there was a section 1983 cause of action, the Fifth Circuit more than 10 years ago.

There is no Federal court of appeals that has taken petitioner's position.

I think in the past 5 or 6 years there have been at least two more circuits.

People comply.

But Ms. Brinkmann, if your... if the force... if we accept the force of your argument, then I think we'd have to say, well, Congress really didn't need to bother with the centralized administration provision, and yet Congress did put it in, and it seems to me the most likely reason that it put it in is the reason that Justice Breyer just gave.

Mr. Brinkmann: I think--

Mr. Roberts: So you may have made a good argument for getting rid of it, but as long as it's there, it seems to have the same lesson that his question suggests.

Mr. Brinkmann: --I think that the FPCO office serves a admirably meritorious role.

It answers countless numbers of phone calls and inquiries about this, but its own interpretation of its role I think is really illustrated by footnote 6 in our brief, which is on page 35.

In 1987, when FPCO changed regulations, it explained that it wasn't going to require schools even to afford them access to education records information because they don't go out and investigate.

What more accurately reflects their investigation is allowing schools to submit reports... and this is quotes... since its inception, FPCO has not conducted any on-site visits to resolve complaints.

Rather, it has resolved complaints through correspondence and telephone calls with the affected parties, and that works in the vast majority of cases.

In the limited number of cases that are brought under FERPA in the Federal courts, Federal and State courts since its enactment, this is the only reported case that anyone has located for punitive damages, and the only other case that had any damages was $1 of nominal damages that we've been able to--

Mr. Roberts: But that may be a very good argument for saying that what Congress had in mind, in effect, in confining the enforcement the way it seems to have done by this exclusive authority provision works in the general run of cases, and therefore there is not a good reason to say that Congress probably would have wanted this private right of action with the punitive damages.

Mr. Brinkmann: --I think it works generally, and then you look at the Blessing inquiry to see if Congress intended to create a right, they intended to create a right from all of those reasons I said.

Once you get there, it's clear, it's mandatory--

Mr. Roberts: But we're at the... we're beyond stage 1, 2, 3--

Mr. Brinkmann: --It's... yes.

Mr. Roberts: --and we're saying, okay, are there particular reasons to think that they did not.

Mr. Brinkmann: Then it's presumptively available, a section 1983 action.

It's not an implied cause of action.

Congress created 1983 and said, if you have a Federal right, you can enforce it in court.

It is against that presumption the petitioner has to carry the heavy burden that this Court has found met only twice, in the Sea Clammers case and Smith v. Robinson.

Mr. Roberts: Why isn't the theory of centralized administration, spelled out in the statute, with the Secretary's office doing this thing, why doesn't that overcome the presumption?

Mr. Brinkmann: Because the presumption has to be overcome by an enforcement scheme, an administrative scheme that supplants the section 1983 that has some address for a private remedy.

Mr. Roberts: Well, certainly it doesn't have to be a duplicate of section 1983, or there would be no point in saying it supplants it.

Mr. Brinkmann: Absolutely, Your Honor, but here there is absolutely no availability for any remedy for an individual injury, and Sea Clammers--

Mr. Roberts: Ms. Brink--

--Well now, wait a minute.

As I understand it, people who are aggrieved by some practice in the schools can get a hold of the Secretary's office and... by a phone call and perhaps by the Secretary's action in saying, either you fly right or we'll cut off funds, they do have a remedy.

Mr. Brinkmann: --Not under (b)(2)(A), if they have released records.

There's no provision for any kind of damages compensation for an individual, and the Court has looked at that role of the administrative scheme in its line of cases, deciding whether or not it was sufficient to supplant this congressionally created right under section 1983.

In the two cases--

Mr. Roberts: Ms. Brinkmann, can you give us one other example of a right that depends upon whether the person allegedly violating the right has done it before?

Mr. Brinkmann: --Yes, Your Honor.

Mr. Roberts: Or has a policy or practice of doing it?

For example, you know, your right to be free from unreasonable searches and seizures.

I suppose you're going to tell us about the Monell case.

Mr. Brinkmann: I was going to cite the Monell case.

I think that's--

Mr. Roberts: No, no, no.

Mr. Brinkmann: --exactly what the Monell case is about.

Mr. Roberts: That depends on whom you can sue.

That depends upon whom you can assert the right against, but against the individual you can assert that right, whether there's a policy or practice or not.

That's simply the question of whether you can reach the municipality, but I cannot think of a single other right in the world which only exists as a right when somebody is a two-time loser, or has a policy, or practice.

Mr. Brinkmann: Your Honor, a policy or practice may not have injured anyone in the past.

They may have a written policy in saying, we're going to release these things to--

Mr. Roberts: Maybe, but it's a very strange right.

I don't know of any--

Mr. Brinkmann: --This is the fact--

Mr. Roberts: --I mean, I have another rights question, too, but I... you're relying on the use of the right, of the term, right, in the statute.

What do you do... what do you conceive to be the... it's on the... it's on page 4a of the blue brief.

It refers to the privacy rights of students.

It says that no funds shall be available, blah, blah, blah, unless in accordance with regulations of the Secretary, the student or parents has a right to challenge the content of each student's education record in order to ensure that the records are not inaccurate, misleading, or otherwise in violation of the privacy rights of students.

Is that also the creation of a Federal privacy right?

Mr. Brinkmann: --I don't believe so, Your Honor.

I have to--

Mr. Roberts: Does it refer to existing State privacy rights, or just sort of a moral notion of what things should be kept private?

Mr. Brinkmann: --Well, I have to emphasize, our statutory argument about rights is not based solely on the 1232g(d) referenced rights.

It's based on the, unless there is consent from the parents, and on this particularized consent required, giving parents a copy, telling them to whom am I... that is what demonstrates under the Blessing standard it was intended to benefit parents and to address their specific needs to protect their children from information they have never been informed about, as in this case, that destroyed this person's career.

That's exactly what Congress was aiming at, and without... in petitioner's position there was absolutely nothing that anyone can do to protect that right.

The Department of Education cannot give individual relief, and this... anybody will be barred from going into court.

Fortunately, this doesn't happen.

It's simple.

Schools comply with it.

This is an exceptionally unusual and egregious case.

Mr. Roberts: Well, Ms. Brinkmann, there haven't been other cases where substantial monetary damages and punitive damages have been available, and maybe that's the concern.

I mean, it's... this is a person who did have a right.

There was a contract right, and there was the deformation, but by bringing 1983 into the picture, the damages are increased for the same conduct, and you can pick up 1988 counsel fees.

Mr. Brinkmann: It's not the same conduct, Your Honor, if I may.

First of all, deformation would not necessarily cover cases that involved truthful information, but in this particular case, if I could just make clear, what I think... first of all, this involved compensatory damages, just not punitive, but of course this Court's ruling will affect injunctive actions also, but in this case, because this information was released at the very outset of this investigation, it affected the school's decision about whether or not to issue an affidavit to my client.

There was disagreement... even as it stood, without any information from my client to say this was false, there was disagreement amongst the school officials about whether or not to issue this, and plaintiff's exhibit 28 has a chronology.

The people at the school who were in favor of releasing, of not giving the affidavit got State officials to contact the dean and--

Mr. Roberts: Thank you, Ms. Brinkmann.

Mr. Roberts, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE PETITIONERS

Mr. Roberts: Thank you, Your Honor.

Two statutes enacted within 2 years of each other: title IX, no person shall be subject to discrimination; FERPA, no funds shall be made available to an institution that has a policy or practice described in the statute, and the Secretary shall deal with violations, and the Secretary shall do that at one place, because we're worried about multiple interpretations causing confusion.

Now, that is two... those are two very different ways of approaching a problem.

Under this Court's precedents the former, the title IX model confers privately enforceable rights.

The latter does not.

Why would Congress proceed differently in dealing with educational institutions in those two different contexts?

Because of the appreciation that the regulation of student records from kindergarten through graduate school directly implicated pedagogical concerns.

It would have been a radical notion, even in 1974, for Congress to confer individual rights on every student from kindergarten to graduate school in a way that would directly implicate the day-to-day running of schools across the country, and there's no evidence to suggest that that's what Congress had in mind.

The evidence is the opposite.

It proceeded gingerly.

It said, this is directed to the Secretary.

It's directed to policies and practice.

Who's going to deal with violations?

Mr. Secretary, deal with violations, and do it in one place.

Four months after FERPA was enacted, in response to what was called by the sponsors the perplexity and frustration it had caused... four months... they added the second sentence to subsection (g) on page 12a of the blue brief, and that said, don't do any of this, Mr. Secretary, in any of the regional offices.

The reason?

We're afraid of multiple interpretation.

Well, multiple interpretations caused by regional offices, there's a slight problem there, are, after all, answerable to the Secretary.

Individual private plaintiffs suing in State and Federal court around the country, any one of these 62 million students covered by the Federal funds requirement, that would give rise to multiple interpretations, and it is implausible to suppose--

Mr. Roberts: They're answerable to us, presumably.

We could take care of all of that, right?

[Laughter]

Mr. Roberts: --Well, it is implausible to suppose that the same Congress that was so worried about multiple interpretations of the law from the regional offices of one Department would have been perfectly content and, in fact, intended to confer the right for every one of 62 million students to go into court in a 1983 action.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Mr. Roberts: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

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Board of Education v. Earls - Oral Argument

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Board of Education v. Earls

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Transcript:

ORAL ARGUMENT OF LINDA M. MEOLI ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument now in No. 00... oh, pardon me... 01-332, the Board of Education of Independent School District No. 92 of Pottawatomie County v. Lindsay Earls.

Ms. Meoli.

Meoli I guess.

Is... is that the correct pronunciation?

Mr. Meoli: Meoli.

Mr. Clement: Meoli, okay.

The third time is the charm.

[Laughter]

Mr. Meoli: Mr. Chief Justice, and may it please the Court:

This case involves the constitutionality of the Tecumseh School Board's decision to implement a suspicionless drug testing policy for students in competitive activities as a reasonable response to student drug use.

Tecumseh's policy represents a natural, logical, and rational application of this Court's decision in Vernonia v. Acton.

Vernonia's policy applied to students who chose to participate in interscholastic athletics.

Tecumseh's policy applies as well to athletics, but also to all the other competitive activities that are offered by the district.

Respondents do not challenge the policy as applied to the athletics, conceding that this Court approved that practice in Vernonia.

Competitive--

Mr. Clement: Well, this policy goes beyond what was permitted in Vernonia, does it not?

Mr. Meoli: --Well, it covers--

Mr. Clement: It greatly expands the number of students covered by the policy.

Mr. Meoli: --It... it covers a wider variety of interscholastic competitive activities.

Mr. Clement: And the evidence is not as strong, is it, in this case of drug use in the school as... as was the case in Vernonia?

Mr. Meoli: Well, Your Honor, we do not believe that is true.

Mr. Clement: Well, if you go by the district court's findings, that's what you'd conclude.

Mr. Meoli: The district court in Vernonia?

Mr. Clement: In this case.

Mr. Meoli: In this case.

No, Your Honor, I... I really don't think so.

I think there is ample evidence in the record to demonstrate a drug problem in Tecumseh.

Mr. Clement: What do you--

--By the... by the young people who were involved in these particular extracurricular activities?

Mr. Meoli: Yes, we do have evidence of drug use with these students in extracurricular activities.

Mr. Clement: Well, what do you make of the... the reports that have been filed up to the eve of the adoption of this regulation by the school district with the Feds, year after year after year, saying, things are fine here?

The only thing we have to worry about is some beer.

Were they lying?

Mr. Meoli: No, Your Honor, I don't think they were lying.

Number one, the district has always admitted that alcohol really is the number one problem in the school district, and that's what the applications for the Federal--

Mr. Clement: Yes, but they were... they were saying at the same time that they didn't have a problem with... with what we usually refer to as drugs.

Mr. Meoli: --They said it... it wasn't a major problem at that time.

And... and I think if you compare--

Mr. Clement: And... and in point of fact, as I understand it, since the testing has been carried out among the... the class of people subject to this challenge, there have been only three instances of any drug use found.

Mr. Meoli: --From the... from the drug testing?

Mr. Clement: It would seem... it seems to me that your evidentiary problem is up to the eve of adopting the regulation, the school district was saying, we don't have a problem.

And once the regulation was, in fact, in... was... was placed into effect, you've gone for several years and you found three instances.

I... I don't see how you... you don't lose whether we look at it ex ante or ex post.

Mr. Meoli: Let me answer the second part first.

First of all, the... the policy was only in effect for a limited amount of time in the 2-year span of time.

It was implemented halfway into the first school year, and so a limited amount of students were covered in that first year.

The second year, the lawsuit was filed at the beginning of August, and therefore only a very limited number of initial testing was done before the district determined to hold the policy in abeyance.

There were four students in... under those limited amount of students that tested positive.

I know the court of appeals referred to three in one area, but that was just in the high school.

Mr. Clement: But didn't one--

--Well, I suppose the existence of a policy might be expected to deter drug use so that you would have fewer instances after it was imposed.

Mr. Meoli: Yes, Your Honor, and... and in fact really--

Mr. Clement: We will never know, will we?

Well, let her answer the question.

[Laughter]

Mr. Meoli: --Your Honor, in fact, it... it really did.

I... I mean, if you even take the limited amount of testing that we did in the 2-year period of time, the first year three students tested positive, the second year one student tested positive.

The only full year that the testing was applied in the Tecumseh School District was after the district court made its decision but before the court of appeals overruled it.

And that evidence is not in the record, but it was... there was a greater number of students that tested--

Mr. Clement: Ms. Meoli, didn't we say in Vernonia that in Skinner, which was the railroad employee testing case, we did not demand that it be shown that the particular railroad had a drug problem?

Didn't we say it was enough that there was a nationwide problem?

Mr. Meoli: --Yes, Your Honor.

Mr. Clement: We said that in Skinner, and we adverted to that in Vernonia.

Mr. Meoli: And... and Vernonia's evidence as well showed that there was not a specific drug problem among athletes.

Mr. Clement: I thought the argument in Vernonia and I thought the opinion in Vernonia, in assessing the particular interest of the district, repeatedly emphasized the particular problems with the athletes.

The athletes were the ones that the kids looked up to.

They were the role models.

There was rampant drug use among the athletes.

There was a rampant disciplinary problem among the athletes.

Athletes were getting injured.

There was a very specific showing of a specific interest of the district.

And now you're coming in and saying, well, that... that really does not matter.

And it seems to me that the implication of what you're saying is that this so-called special needs requirement will apply to every child in every school in the United States.

Mr. Meoli: I'm not saying that, Your Honor.

I... I think there is a corollary--

Mr. Clement: But isn't that the implication of what you're saying?

Mr. Meoli: --No, Your Honor, I don't.

For instance, you were talking about in Vernonia the athletes were looked up as role models.

Well, the athletes in interscholastic competition in Tecumseh are looked at as role models to some students--

Mr. Clement: Except for one startling difference.

The... in... there was a problem with athletes.

Here, one thing that is clear in the record is the... the school board's admission that the... that the drug and alcohol problem is more of a problem with those who are not engaged in these extracurricular activities.

In other words, the testing is directed to a group, those engaged in competitive activities, that is less of a problem, as far as drug use is concerned, than the rest of the students who are idle.

And just naturally one would expect what turns out to be the case, that there's more drug use in the group that's not tested than there is in the group that's tested.

Mr. Meoli: --Well, Your Honor, we have never said that the... the students in interscholastic competitive activities are the only students or even the most likely students to be abusing drugs.

But the evidence that we have in the case demonstrate that they do abuse drugs.

Mr. Clement: Well, I'm... I'm referring specifically to page 100 and 101 of the joint appendix where the question is whether the students who tend to be involved in drugs are the ones most likely to be choosing extracurricular activities.

And the answer ultimately is, we have students that are on drugs, and they are in extracurricular activities.

They are... they are... there are probably more that are not in activities.

Mr. Meoli: That was the testimony of the... of the board president, Dean Rogers.

There's also testimony of James Blue that said he really didn't find that difference between--

Mr. Clement: Where is that testimony?

Mr. Meoli: --I think it is at page 106, Your Honor.

Page 106.

Now, national studies show that band, vocal and non-athletic extracurricular activities students, they are the least likely of all students to use drugs.

Would you agree that this same... the same thing would hold true for Tecumseh High School students?

The answer was, no, I would not.

Mr. Clement: He had no basis for saying yes or no.

Mr. Meoli: Well, yes, he... he says that initially, and then he goes on to say, I just know that all age levels, all categories... if we're categorizing the students that frequent the park.

This part of the deposition was referring to this--

Mr. Clement: Yes, but he's not saying, as was the case in Vernonia, that here is a group that we can identify that has this problem.

Either there's no particular problem with this group as opposed to all students... so, my question is if... if you can, on the absence of any special showing with respect to this extracurricular group, then it seems to me that your argument is really that all students can be tested.

I mean, there was a special circumstance with the athletes in Vernonia.

Your argument for these extracurricular people I think would hold as well for... for all the students because there's no more of a problem and probably less among those engaged in extracurricular activities than the... than among the students that don't do anything after school.

Mr. Meoli: --Your Honor, the use of... of drugs among the students in competitive activities was just one of the factors as to why the Tecumseh board selected that group.

I really do think that, in fact, the... at the meeting that the school district held for the community to give input, they asked that same question, why can't we drug test all students?

And I think there's a couple of reasons as to why you can't.

One of the reasons I think is because students in general have a property right in their education.

Hence, they have a legal entitlement to a free public education.

Secondly, the State compels them to be there, and parents, if they do not send their... their children to school, face criminal prosecution.

So... so they are there.

And I don't think that you can fashion a drug testing policy that could have the kind of consequences that would deny them that opportunity or... or prevent parents from being persecuted for not--

Mr. Clement: Well, if you want--

--You don't... you don't have to go that far, do you, in order to... in order to justify limiting it to those who participate in... in voluntary activities?

Mr. Meoli: --No, Your Honor.

We... we--

Mr. Clement: It seems to me you could say even if we could drug test anybody, we made the choice of giving a student who feels that strongly about not undergoing drug testing the ability to avoid it by simply not engaging in the extracurricular activities.

You don't have to forego going to school entirely or go to a private school.

You can simply not participate in extracurricular activity.

Isn't that in itself a valid reason for limiting it to extracurricular activities?

Mr. Meoli: --Yes.

Yes, Your Honor.

I--

Mr. Clement: It's an equally valid argument... I... I suppose an equally valid argument would... for... for testing everybody would be our object is to stop drug use, not to penalize people who go out for band.

And there's some evidence in this record that there is more drug use about the... among the people who are not going out for extracurricular activities, but among those who do.

And therefore, if your argument is good for this case, it seems to me your argument, a fortiori, is good for testing everybody in the school.

Mr. Meoli: --Your Honor, the... the purpose of this program is not to discipline students.

It's not to catch them.

It is to deter drug use and to help those students--

Mr. Clement: Don't you want to deter drug use among those who do not go out for band?

Mr. Meoli: --Yes, Your Honor, I... I believe we do.

Mr. Clement: Then why isn't the argument good that you can test everybody?

Mr. Meoli: Well, number one, I... I think there is a deterrent effect for implementing this program among the student... general student body.

If they want to--

Mr. Clement: Well, I think... go ahead.

Mr. Meoli: --If they want to try out or... or audition for one of those competitive activities, they know in advance that one of the regulations is to be subjected to drug testing.

Mr. Clement: No, but with respect, what you're arguing is... is a justification for the present policy that you've got, and I understand your position there.

What I'm interested in and Justice Ginsburg was a moment ago is it seems to me that if... if we take your argument and we take the evidence that is indicated on the record, there is at least an equally good argument for testing everybody in the school, whether they go out for band or whatnot or... or do not.

And... and isn't that the case?

That's what we're interested in.

Mr. Meoli: Well, I think there is a reasonably good argument for that.

We're not espousing that, but I think--

Mr. Clement: No, I realize--

Mr. Meoli: --even though... even... even if we utilize the balancing test that was utilized in Vernonia, I... I think there is a really good argument--

Mr. Clement: --But if we get to that point, then the whole notion of special need has... has, more or less, evaporated.

We don't have the kind of special safety need as... as in the railroad case.

We don't have the unusual temptation to crime need as in the immigration case, and the special need is simply the need to deter drug use among all children in all schools of the United States.

And... and if the... if the theory of this is special need, it seems to me that the concept of special need seems to have gotten lost.

I suppose the distinction that you draw is based on the fact that you have a sanction for the people that you apply it to.

You can tell them you cannot participate in extracurricular activities.

But as... if you applied it to the whole school board... to the whole school population, rather, you couldn't sanction them by saying you cannot come to school.

Mr. Meoli: --Exactly, Your Honor, and... and that really is our position because we have to educate the--

Mr. Clement: But you could say--

--And the only sanction you impose is you just can't play in the band or... or cheerlead or whatever it is they want to do.

Mr. Meoli: --You can... you can remain in the class.

Mr. Clement: So, you have a special burden if you want to engage in extracurricular activities.

Mr. Meoli: Yes, Your Honor.

Mr. Clement: Or how about taking elective classes, classes that the State doesn't require you to take, but some students might like to take?

Mr. Meoli: Well, Your Honor, we have to draw a line somewhere, and... and even though elective classes are a choice--

Mr. Clement: Well, I wondered what... the line that you would draw as a question of the school's policy, but you were saying at least you see a problem with testing everyone because people are compelled to go to school and... so that's why you resisted drawing the line there.

My question is if you're doing a voluntary, then why don't you say as well, you volunteer for... you're taking a certain course, this is an elective course.

Same thing.

Mr. Meoli: --Well... well, elective courses are really mandatory, Your Honor, in many cases.

I mean, you have your core curriculum that are required for graduation, and you also have your electives.

You need 24 credits in order to graduate from high school.

18 of them have to be in the core subjects.

The rest of them are electives.

But those are required.

Mr. Clement: Except for that, it would be a good idea, though, wouldn't it?

[Laughter]

Mr. Meoli: Yes, Your Honor.

I... I think if... if we could fashion--

Mr. Clement: That's what I thought you'd say.

Mr. Meoli: --If we could fashion a way to do it, I believe the majority of school boards would be behind it.

But... but at the state of the constitutions of... of the 50 States and the states of the compulsory education laws that all the States have, I... I don't think that is possible.

So, if a line is going to be drawn, I think the line can be drawn between the students in the general school population and students in extracurricular--

Mr. Clement: May I ask?

Is there any other sanction other than... other than ineligibility for extracurricular activities?

Is there any other sanction imposed on a student who is found to have been using drugs?

Mr. Meoli: --No... no, Your Honor, and in fact, that only happens in this policy under the third time--

Mr. Clement: So, really the student could say, well, the worst... if I go out for extracurricular activities and get caught, it'll be back where if I had gone out at all.

[Laughter]

He gets back to square one.

Mr. Meoli: --Well, I think... I think children who engage in these activities really want to compete.

I mean, they are really interested in what they are doing.

So, they don't want to get caught.

And it's also a... a way for these students to say no.

Peer pressure among elementary and secondary school children is... is very significant, and--

Mr. Clement: Could you, for that reason, adopt as a... as one of our sanctions or a supplementary sanction simply publicity that the person has been caught?

Anybody who fails the drug test will have his name and photograph posted on the bulletin board.

Would that be... would that be constitutional too?

I presume it would be under your theory.

Mr. Meoli: --I... I think it would be very cruel, Your Honor.

As... as to whether--

Mr. Clement: It would get the job done.

Mr. Meoli: --as to whether it is constitutional or not... we're... we're not in... in the job of disciplining students.

And... and we seem to be going into that realm more and more.

This program... we don't want to put an A on them or a big substance abuse on them.

What we really want to do is help those students.

And it may be constitutional to do that, but that's not what we are asking this Court to do.

We're just asking you to give us the tools to deter drug use, to help those drug users.

And... and if there are no other questions--

Mr. Clement: Very well, Ms. Meoli.

Mr. Meoli: --my time.

Mr. Clement: Mr. Clement.

ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Clement: Mr. Chief Justice, and may it please the Court:

A school district that reasonably concludes that it faces a drug problem may adopt random drug tests for students engaged in competitive extracurricular activities without violating the Constitution.

Mr. Clement: Suppose you've had hard statistical evidence to show that the kids that go out for the extracurricular activities are the ones that really do not use drugs, that the high drug user population is in those that don't engage in the activities.

What... what would your recommendation be to the school board at that point?

Mr. Clement: I think in a case like that, it still might be appropriate for the school district to test the students involved in extracurricular activities, and I think that is because, as this Court has emphasized on a number of occasions, by making the... the testing program applicable only to an avoidable activity, the... the school district would be ensuring the reasonableness of the program under the Fourth Amendment.

Mr. Clement: But there's some... we... we had an amicus brief by some... a pediatrics association and so forth that pointed out that students that engage in these extracurricular activities are, indeed, the least likely to be involved in drug use.

And it seems so odd to try to penalize those students and leave untested the students that are most apt to be engaged in the problem.

Mr. Clement: Well--

Mr. Clement: It's just... it's so counterintuitive, isn't it?

Mr. Clement: --A couple of points in response to that, Justice O'Connor.

First, there's contrary evidence as well, and the petitioners in their reply brief point to some evidentiary studies that showed that really drug use is distributed evenly across all groups in the student... in the student population.

The second thing I would add is that as... as I was noting in answer to Justice Kennedy's question, there is a sense, and which the majority and Justice Ginsburg in... in Vernonia emphasized, that by making the program only applicable to activities that are avoidable, you... you limit Fourth Amendment difficulties.

You make the program more reasonable.

And as Justice Stevens pointed out, you also avoid any difficult questions that might be occasioned by the consequences of a drug testing program that applies to school-wide.

Mr. Clement: Well, this in the face of a school district that is certifying to the Federal Government they don't have a drug problem.

I mean, the whole thing is absolutely odd.

Mr. Clement: Well, I don't think it's that odd, Justice O'Connor.

First of all, in terms of the certifications, I would direct you to footnote 23 of the district court opinion.

And the district court found in that footnote that what those reports really emphasized are the relative natures of the problem.

Alcohol was the major problem they faced, but in each one of those... those reports, they note that they do have a drug problem.

Mr. Clement: Well, if alcohol is the problem, why don't they address that?

This is just... I mean, it's structured in a way to do very little good it seems to me.

Mr. Clement, do you think any school in the country doesn't have a drug problem?

Mr. Clement: I would be surprised to find a school district that didn't.

The national figures on... on the... the amount of drug use are really staggering.

As we note in our brief, over half of all 12th graders have tried illegal drugs by the time they graduate from high school.

So, I really think that, you know, if anything, the burden ought to shift in these cases to the other side to show that this one school district is the one school district--

Mr. Clement: Can... can you tell me--

--In both Skinner and Von Raab, we imposed or we permitted the imposition of drug testing on the basis of a nationwide problem, didn't we, without... without showing that the particular entity in question shared in that national problem?

Mr. Clement: --That's correct, Justice Scalia.

And I would also point out I'm not sure you want to put school districts in the business of trying... when they... when they find some incidental evidence of drug use, to try to pin it down to the exact extracurricular groups involved.

If a student comes in--

Mr. Clement: Well, do--

Mr. Clement: --for some sort of anonymous drug counseling, I'm not sure they want to ask him what groups are you in.

Mr. Clement: --May I ask?

What is your view on... on the validity of a... a school-wide drug testing program?

Mr. Clement: Justice Stevens, we think such a program would be constitutional, but we think the program at issue here--

Mr. Clement: So, you would differ from the petitioners then.

Mr. Clement: --We... we do have that difference, but we think a program like this is constitutional for three reasons.

One, extracurricular students agree to additional intrusions on their privacy and have additional safety risks.

Second, as--

Mr. Clement: No.

But you say they agree to it.

They agree to it only under the circumstances that if they don't agree to it, they can't engage in any of these activities.

They know perfectly well they'll never get into a competitive college if they don't.

And the... the agreement is not simply something that is... is arrived at sort of in the abstract.

There's... there's tremendous pressure on them to agree to it.

Mr. Clement: --Two points, Justice Souter.

First, we're not suggesting this is... this is constitutional because it's consensual.

I think Justice Kennedy, in... in his separate opinion in the Ferguson case, pointed out that in these special needs contexts, there's an element of voluntariness which is important to the constitutional analysis, even if it's not voluntary in the full sense of the word.

This... a second and related point about that, though, is that these are avoidable programs, and I think that makes the important difference.

And again, as I noted earlier, because they're... they're avoidable in that sense, it avoids any difficult questions with the consequences that a positive test might generate.

Mr. Clement: But it doesn't--

--May I ask you a question that... that is... concern... concerns me about the difference between this case and Vernonia?

If we... if we look at what people might expect in the real world, where people know that athletes, professional athletes, Olympic athletes, athletes are tested for drugs, but people who are just everyday people aren't.

So, Vernonia could be regarded as all the students who are athletes... they will be treated as athletes are generally.

But that's not true of the... the large population of high school students.

Mr. Clement: Well, I mean, I... I think one fact is that I think it is increasingly becoming true that... that these sorts of policies are in society as a whole.

And one of the petitioners in this case who... who didn't wanted to be drug tested at school had to go get drug tested for the job at the Kmart, at the McDonald's.

And I do think that probably does have some influence on the reasonable expectations of privacy in this area.

But I also think that it really doesn't make a lot of sense to draw a line on... on sports, and even within sports, of course, there are differences.

The Vernonia policy applied to golfers, as well as football players.

Now, I'm not aware that golfers, as a general matter, are tested for substance abuse even on the PGA Tour.

I could be wrong about that, but the point is there are differences in the risks even among the athletes, and I think this Court in Vernonia didn't make anything turn on those differences.

The dissent in Vernonia pointed out that there wasn't any evidence of drug use at the grade school in the 7th and 8th grade, and that the evidence really wasn't an evidence of a disciplinary problem that was specific to student athletes.

And the majority in Vernonia did not... was not... was not moved by those two points.

The majority said that the evidence was good enough in these contexts.

And I think this is an area where deference to the local school boards in their determinations about the nature of the problem, the nature of the solution, and particularly the particular students that are going to be tested is quite appropriate.

It's important to recognize--

Mr. Clement: But you would make... you would make... and I think you've said this... the same argument if they had decided to have a universal drug testing policy in the school.

Mr. Clement: --I would, Justice Souter.

I do... as I said, I think it's a more difficult question.

And I think the most difficult problem with a school-wide test is what Justice Stevens pointed out, and that would be what are the consequences of a positive test.

But if you imagine a school district that... that faced... reasonably concluded it faced a serious problem and instituted a drug test where the only ramification of a positive drug test was a confidential notification of the parents, I don't see why that test would violate Fourth Amendment reasonableness.

Mr. Clement: But at that point, I... the so-called special need has become virtually a universal need.

Mr. Clement: I would like to say two things in response to that.

First, in Vernonia itself, this Court didn't identify the special need as being the drug problem.

This Court identified the special need as being the school setting, and that's consistent with this Court's decision in T.L.O.--

Mr. Clement: And... and the special need would be a universal need in every school in the United States.

Mr. Clement: --I... I do think it would properly recognize that the school context is different, and that school boards have a freer hand in testing their students than the Government has testing either employees or its citizens at large.

Mr. Clement: But if... if that is the case, what is the danger in the school case, comparable to the... to the railroad worker's danger or the... the customs officer's danger?

What is the danger as distinct from simply the desire to deter illegal drug use?

Mr. Clement: I think the danger is this.

I mean, it... and I think Von Raab actually is... is an excellent counterpoint.

This Court in Von Raab said that you could test the customs official because they are on the front line of the drug problems on the supply side.

I think by parity of reasoning, children today are on the front lines of the drug problem, but on the demand side.

The evidence shows that if you can stop children from using drugs before their 18th birthday, they're not likely to start using drugs after that--

Mr. Clement: But if--

--The danger is getting young people used to a drug culture.

You're raising young people in school.

And the... the specific danger is unlike with adults.

You're forming... you're forming their habits for the rest of their life.

Mr. Clement: --I agree with that, Justice Scalia, and I would... I would add that this is not the only context where... where the Federal Government has recognized that difference.

The penalties for dealing drugs in a school area or selling drugs to a minor are much more substantial than those selling drugs to adults.

Mr. Clement: I think that's hardly a revelation that the Government is concerned about what drugs do to our culture.

Mr. Clement: Absolutely, and I think it's perfectly--

Mr. Clement: It's not exactly rocket science, is it?

Mr. Clement: --No, and... and I don't think it's rocket science also to say that that... that concern is particularly acute with respect to the youngest and most vulnerable members of society.

And as I say, if you look at 21 U.S.C. 859, 860, 861, all of those provisions put added penalties on someone who deals drugs involving children.

Thank you.

Mr. Clement: Thank you, Mr. Clement.

Mr. Boyd, we'll hear from you.

ORAL ARGUMENT OF GRAHAM A. BOYD ON BEHALF OF THE RESPONDENTS

Mr. Boyd: Mr. Chief Justice, and may it please the Court:

Opposing counsel said we have to draw the line somewhere, and the... the way to draw the line in this case is to keep in mind the core principle that individualized reasonable suspicion is the standard for school searches set forth in T.L.O. If there's going to be a line as to where do we go past that standard, while still retaining the core of T.L.O.--

Mr. Clement: There was no individualized suspicion in Vernonia.

Mr. Boyd: --There... there was not, and Vernonia is the exception.

Mr. Clement: Well, so... so there goes your principle.

Mr. Boyd: Vernonia is the exception to the T.L.O. rule.

It didn't... it did not overrule T.L.O. What Vernonia said is that in certain special circumstances, that rule would be set aside.

The key--

Mr. Clement: You can have medical... metal detectors in schools where they're afraid the children have guns?

Mr. Boyd: --Yes, they can.

Mr. Clement: Now, there's no individualized suspicion there, is there?

Mr. Boyd: No, there's not, and the reason--

Mr. Clement: Can we take throat swabs if you feel that there is a contagious disease?

Mr. Boyd: --Throat swabs if you think there's a contagious disease.

I'm not--

Mr. Clement: I was trying to... well, that's what I... I raised that because, of course, everyone is making a criminal analogy, but nobody is arrested here.

Mr. Boyd: --Well--

Mr. Clement: Nobody is arrested.

This is counseling.

It's an effort to deal with the demand side of drugs, and... and I just wonder.

That's why I'm... I'm raising, right at the beginning, the question of whether this individualized suspicion is the correct model to apply.

Mr. Boyd: --Well, unless the Court stands ready to overrule T.L.O., I believe it is the standard.

I think what's behind your question, Justice Breyer, is... is a question about intrusiveness of the search.

Obviously, there is a difference between the passive--

Mr. Clement: Well, I mean, it's absolutely clear there isn't individualized suspicion, so you win automatically if that's the test, I would think.

Mr. Boyd: --Well--

Mr. Clement: And, of course, it wasn't in Vernonia.

I would think it wouldn't be in certain instances in the school like guns.

And so, rather than just start off, as you did, assuming that that's it, I'd like to hear some argument for it.

Mr. Boyd: --Of... of course.

Let... let me try to set up what... what I see as... as basically how you move from the general rule of T.L.O. to the exception of Vernonia.

In order to set aside that core Fourth Amendment principle, I think there has to be some nexus to a problem, some connection that is demonstrated to a problem either, and preferably both, in terms of safety and drug use.

Both of those are missing here.

The reason this school expanded its initial policy from athletes to include non-athletes was because it wanted to appear evenhanded.

Now, that's not a value that this Court has recognized in the... in the special needs context.

They didn't want to stigmatize the athletes alone through the drug test, so they said, who else can we get?

Their lawyers said, well, the Seventh Circuit said you can get the non-athletes, and so they expanded it.

But let's look at the safety rationale here.

Now, in Vernonia, the school board said up front, this is about the safety of our athletes, and that's why we're doing it.

In this case, the school board's testimony and the testimony of everyone else who has been... who's... who's testified is that safety is not a reason for this test.

There is nothing about the band or the choir that is dangerous.

And this is a very important too that we did not make in our briefs I want to bring out.

In Vernonia, the drug test was for in-season athletic activities.

While you're playing football, you're drug tested.

They were concerned about that.

In this case, they test year in, year out.

If you look at page 198 of the joint appendix, the policy itself says it is in season and out season.

So, there's nothing about the activities of Lindsay Earls in the choir, who's here today, not a drug user... there's nothing about her activities in the choir that requires her being drug tested.

Mr. Clement: But the choir is presumably a year-round thing in a way that football is not.

Mr. Boyd: No, it's not, Your Honor.

All of these activities have competitive seasons, and the competition is what triggers the drug testing.

It's quite clear that in the academic team, choir, band, all of these activities, they are participating at a certain point, and yet they are drug tested throughout the year.

Mr. Clement: Are you saying that, for instance, choir in Tecumseh is only in the fall?

Mr. Boyd: The--

Mr. Clement: Or only in the winter or only in the spring?

Mr. Boyd: --Yes, Your Honor, in terms of the competitions, they are.

There's a class which... which they are very clear, it is not the reason that drug testing takes place, and someone who's merely in the class is not drug tested.

But if you go out for the team, as it were, which competes during a limited season, then you are drug tested, although it is for the entire year.

So, again, it's not the activities of the choir competition that are of concern to the school.

Mr. Clement: Well, give me the quote.

Which season of the four seasons is for band in Tecumseh?

Mr. Boyd: I honestly don't know what months of the year they compete in, and... and in rebuttal, if I'm wrong, I'm--

Mr. Clement: They can't be for all four seasons, I guess.

But--

Mr. Boyd: --Excuse me?

Mr. Clement: --let me... let me ask you this.

What... what they're... what they're trying to do is to find a basis on which they can implement a program which has an element of consent to it.

The Government does not think that's necessary, but that's the case that we have before us.

And so, what the school district has done has taken a set of programs and they said, this is a surrogate for consent, and that's what's happening here.

This... I... I think this goes beyond Vernonia.

Mr. Boyd: Right.

Mr. Clement: But we take cases as they come to us, and in this case, it is clear that the student who is... is so offended by the idea of a search and does not care about the school district's policy of ensuring that drugs are school-free doesn't need to participate in the extracurricular activity.

That's their choice.

Mr. Boyd: Well, Justice Kennedy, you're absolutely right.

That's the position here.

And frankly, I think that's what it comes down to for them.

They don't have the safety rationale.

They don't have the drug use rationale.

And... and I would actually point to the... to your concurrence in the Ferguson case where you... where you, albeit briefly, survey the special needs in drug testing jurisprudence and point out that in all of those cases, the activity was, in a sense, consensual or voluntary.

I mean, this goes back to Justice Scalia's question in... in the initial round, too.

If you want to drive a train, if you want to be a customs agent, if you want to be a football player in Vernonia, if you want to run for office in Chandler, these are all activities which you're perfectly free to not do.

Now, maybe that weighs into the balance, the constitutional reasonableness balance, somewhat but it certainly is not dispositive.

And when that's all you have, when there isn't the history of drug use, when there isn't a safety rationale, when all you have is this, then it's nothing.

Now, I think also I need to--

Mr. Clement: It... it seems to me if a school is better than other school districts insofar as drug use, they have less drug use, that they're maybe entitled to keep it that way.

Mr. Boyd: --Well--

Mr. Clement: You seem to say not.

You seem to say there has to be some great crisis where we lose a couple years of kids to drugs, and then we... and then we move.

National statistics just don't support that.

Mr. Boyd: --Well, there... there are a couple of things.

I mean, first of all, the... the crisis nationally of drug abuse is one that certainly we need to be concerned about, and I think Justice O'Connor is right to point out that the pediatricians, along with the public health social workers and teachers, all say that this policy of setting up barriers for extracurricular activities is actually counterproductive.

It promotes drug use and other dangerous activities.

But let me get to precisely the question that you're asking, too.

This is a school that has in place cameras in the halls, security guards, drug dogs that sweep through the school and the... and the parking lot and the students.

They search lockers.

They have teachers who are trained in looking for drug use.

They have all of these things in place, and they have a mandatory reporting policy that if they discover any drug use, they have to report it.

Now, over the years, that's added up to two instances of drugs being found, none of them associated with non-athletes, none of them associated with extracurricular activities.

Mr. Clement: Yes, but they have a record here that, of course, suggests if you want to know if drugs are going on in your school, you ask the kids.

You don't find them because nobody is stupid enough to take them into the school.

But it's all around and they use them.

And here they ask the kids, and the teachers ask the kids, and they say, sure, there's a lot of drug use going on over in the park, at parties.

That's the record that I saw.

Mr. Boyd: Well--

Mr. Clement: And I don't really see how that... I mean, you know, you might be able to drive a millimeter of light between that and Vernonia.

Mr. Boyd: --Well--

Mr. Clement: So, go ahead and try.

But I... I can't--

[Laughter]

I mean, I... I... they did what I would have done.

I would have asked my children what's really going on in this school, and they get a positive response when it's a question of drugs.

Mr. Boyd: --Justice Breyer, I... I think you're right.

I'm going to go ahead and try.

But I think there's... I think there's an important distinction here.

What the kids said in this case is, to the extent there's drug use going on, who's doing it?

It's not the choir and the band and so forth.

And I think that that's critical.

I think that the jurisprudence of this Court in looking at when do you set aside individualized suspicion, it says there has to be that connection between--

Mr. Clement: Why?

Now, I--

Mr. Boyd: --Why.

Mr. Clement: --Of course, if I read the cases, as I do, and they logically require you to win, that's the end.

You win.

Mr. Boyd: Sure.

Mr. Clement: But just in case it's open--

[Laughter]

--I would like to know why.

I take it they've given you some reasons why they've limited it.

One, these are the school leaders and maybe it'll spread.

Mr. Boyd: Sure.

Mr. Clement: Two, we don't want to put the student, although we'd really like to, to the choice of school versus drug testing.

We'll put him to the choice of extracurricular versus drug testing.

It's a little bit better.

Okay.

That's their reason.

Now, what do you say?

Mr. Boyd: Well, I... I mean, I think what's perhaps behind your question is a little bit of what's the law and why is the law that way and a little bit of why the policy--

Mr. Clement: I'll tell you what's behind the question.

What's behind the question is that I think undoubtedly you're right, that this is a slight expansion of Vernonia.

You want to say a lot.

They'll say hardly any.

So, it's hard for me to see why, if I came out one way in Vernonia, I'd come out differently here.

And that's what I want you to--

Mr. Boyd: --Okay, fair enough.

I... I think the question is where do you want to put your focus.

If your focus is solely on is there evidence of drug use in the high school alone, then the difference here I think is still very important.

In Vernonia, you had athletes who were skipping class and being arrested.

You had people smoking marijuana across the street in plain view.

You've got none of that here.

I think there is that difference.

But I think that also I would ask you to focus somewhere different than what is the overall general problem.

I would say that if you take seriously the idea of the nexus, or connection, being there in order to take what is a serious step from individualized suspicion to blanket intrusive search, I would say you have to look at what are the reasons for picking this group.

Is it simply to be fair to the athletes where a problem may exist, or is it... which is the case here, or is it because there's a problem here, which is certainly not the case here.

And there's another difference too, Justice Breyer, which I think is absolutely critical.

In Vernonia, that was a school where discipline was out of control.

Discipline throughout the school jurisprudence of this Court has been a critical factor.

In Vernonia, it was a school that said, quote, we don't have a major drug problem for many years, just like this school.

But then in the space of 2 or 3 years, they said, discipline referrals have increased by almost threefold.

Teachers are threatening to quit.

We're thinking about mass expulsion of the students.

We can't keep control of this school.

Now, if you look what this school has said, by contrast, let me refer you to the joint appendix.

In their Federal reports, they say... now, I'm not talking about the drug use here.

I'm talking about discipline.

They say on page 192, minimal problems have been experienced due to violent safety and discipline problems.

That's right in the middle.

And in the very last sentence on that page--

Mr. Clement: --I don't understand the point of this argument, counsel.

I mean, is... is the only reason schools want to prevent drug use is that they have unruly classrooms when they have drug use?

I should think that is the least of the reasons to prevent drug use.

Mr. Boyd: --Well, it--

Mr. Clement: And... and what I miss in your argument is any recognition of the fact that we are dealing here with minors.

I mean, you're talking here about a search rather than a seizure, but in the case of minors, you can keep them, in effect, imprisoned after school, can you not, if they haven't done their homework or something else?

The school is standing in loco parentis.

It is trying to train and raise these young people to be responsible adults.

And I think that... it's a... it's a world of difference from... from what... from what the State can do with regard to adults.

Mr. Boyd: --Let... let me... let me do two things, if I may, Justice Scalia.

Let me just quote the last sentence of what I was about to say and then I... and then, if I may have your permission to address the in loco parentis argument, because there's a good answer to that.

In terms of the discipline argument, Justice Breyer, what the school said is we don't have that problem, and in the last sentence, the discipline policies in place at each site have been effective in dealing with the problems.

So, I think if one of the things, maybe not the only thing, Justice Scalia, but if one of the things we care about is can the kids learn here, is this a school environment that is conducive to learning and safety and discipline, Tecumseh High School has that in hand with their cameras and guards and dogs and everything else.

They don't need this policy.

Especially they don't need it for Lindsay Earls.

I mean, if they want to voluntarily test all the students, they apparently will get many of them, but why should we force Lindsay Earls to... to give up her privacy as part of that?

Mr. Clement: You're willing to rest your case on the proposition that the only valid basis for conducting drug searches is to... is to enable the school to maintain discipline.

Mr. Boyd: No, no.

Mr. Clement: So long as you have a bunch a druggies who are orderly in class, the school can take no action.

Is... is that what you want us to--

Mr. Boyd: Absolutely not.

Given that we have here a school that has not only discipline in hand, but also drug use itself in hand, especially among these activities, which themselves aren't dangerous, it seems it adds up to me the mirror image of Vernonia.

But let me address your point, Justice Scalia, about in loco parentis.

Mr. Clement: --Except for one point that was made in Vernonia, and it does go across the board, and that was the statement that drug testing on suspicion, which is the alternative, because in life, it's everything as compared to what.

So, if we didn't have the... the random testing, it would be on individual suspicion.

And the point was made there that if you had... if you treated the children that way, you would transform this random process into what the opinion author called a badge of shame, and that it might be worse the risk of singling out the troublesome, but not drug likely student, the one that the teacher... the one that's always the bad boy in the class and diverts the teachers--

Mr. Boyd: Right.

Mr. Clement: --who are engaged in that exercise from the job of teaching to being a police officer.

Mr. Boyd: Justice Ginsburg, there's a good answer to that question.

Let me focus on the facts of this case, as they come to this Court.

This is a school that already has not had this problem of pointing the finger of... of accusation at students, although it could do that with its drug dogs and locker searches and everything else.

When it gets a student for whom there is some suspicion of drug use, say, a... a drug dog hits on a student who could easily have had dad's beer spilled on the... on the sleeve.

That will make a drug dog alert.

That student is then questioned.

That already happens in this school.

But there's also a key point that I think was missed in that... in that discussion in Vernonia, which is that even if... whichever way you rule in this case, suspicion-based drug testing can and will go forward in this and many other schools.

So, even if you have a blanket policy, if there is, say, some malicious teacher out there who wants to... to pick out Johnny because Johnny is acting bad and... and put that badge of shame on him, she or he can certainly do that.

I don't think that that is a reason to go ahead with the policy that doesn't have a basis in the safety, discipline, or drug use rationales.

Now, Justice Scalia, I'm feeling like I'm not getting to the in loco parentis question, and I do because the... the short answer is, I believe the brief by the parents, the amicus brief... Jean Burkett is the lead one... really engages this question in a very vigorous and intelligent manner.

And what they say is this.

In loco parentis is a doctrine that does not say the school is the parent, can take over from the parent.

The parent still retains certain roles, and the parents in this community... a good number of the parents in this community say I want to raise my kid and I've succeeded so far in raising my kid by having open communication where they can come to me and talk and we will... and we will have that trust there.

The school has interfered with that relationship by forcing me, the parent, to sign off on this drug test, which is a different way of raising kids.

Mr. Clement: Well, but the in loco parentis argument works against you there too because in loco parentis also indicates that all children are forced to go to this school.

Mr. Boyd: Yes.

Mr. Clement: And we have to accept that a majority of the parents want to make sure that those children are in a drug-free atmosphere.

Mr. Boyd: In--

Mr. Clement: And they have... they... you seem to me to be disparaging about police dogs and locker searches, and maybe that's what you're going to challenge next.

But what the... what... what the school board has said is that this is a necessary and effective policy, and that's... that's all it said.

Mr. Boyd: --Justice--

Mr. Clement: And there are rights of other children who want to go to a school which is drug-free, if they can.

Mr. Boyd: --Absolutely, Justice Kennedy.

Mr. Clement: And it seems to me that's part of in loco parentis too because those students are required to go the school just as... as the drug user is.

Mr. Boyd: You're absolutely right about that, and please don't hear me to be disparaging of those other tools because those are tools that do not include a blanket intrusive search, which is the principle that's at issue here.

And I actually applaud this school for being--

Mr. Clement: Well, why does it make difference why you applaud it or not?

Mr. Boyd: --Oh, it probably doesn't.

It probably doesn't.

Mr. Clement: We're talking about a constitutional question.

Mr. Boyd: It... it does.

But... but the point I'm trying to make is that... is that these other tools, which they have the legal right to use, are being used successfully.

In loco parentis I think comes into play when you have a school like Vernonia where, as... as you put it, Justice Kennedy, the rights of the other students, their ability to get an education and to themselves stay drug-free is being interfered with.

Now, if we were talking about the Vernonia school--

Mr. Clement: Are you saying that the in loco parentis principle does not apply in the case of a school if a minority of parents object to what the school is doing?

Mr. Boyd: --That's not my position.

Mr. Clement: Well, I thought that was what you were saying a moment ago?

Mr. Boyd: Let... let me please try to be more clear about that.

It depends on what the issue is and what's happening in the school.

When there is an issue of school discipline, say, in the Fraser case or the Hazelwood case, where you had student conduct that was in a sense... well, certainly had... had a element of connection to constitutional protection, but yet affected the rights of other students to be able to learn in that environment, then--

Mr. Clement: Well, how did... how does Hazelwood fit that description?

Mr. Boyd: --Well, because of the disruption that could be caused by the... by the school paper articles.

My... my point is that where disruption--

Mr. Clement: I don't think the reason in Hazelwood was... where the discipline was justified was... caused disruption, but because when you're learning in school, you follow the instructions of the teacher.

Mr. Boyd: --Well, and also the form issue.

I mean, I... I think that's certainly there and I don't... I... I brought this upon myself by bringing up the case, but I hope--

Mr. Clement: You did, yes.

[Laughter]

Mr. Boyd: --I did.

I did.

I did and I apologize for that.

But my point is that the in loco parentis doctrine more broadly comes into play when the rights of the student who says, I want to... or the minority comes into conflict with... with the environment of the school of learning and discipline.

And that's... that was the case in Vernonia.

That's not the case here.

And it's certainly not the case if you think of it in terms of the rights of the student--

Mr. Clement: Now, say again why you... you think the Vernonia situation, with respect to this point, is different than the Tecumseh.

Mr. Boyd: --Sure.

It's... it's really the point I was making to Justice Breyer about discipline in the school.

Vernonia had convincingly shown and the district court found that there was a discipline problem that was out of control that was directly tied to drug use by athletes.

They wanted to address this problem by going after the thing that was connected to it.

Now, this is a school that doesn't have any of that.

It doesn't have the discipline problem.

It doesn't have the drug use.

Mr. Clement: Well, but that... that question has been batted back and forth... you're... you're not saying, are you, that unless the school has the sort of discipline problem they had in Vernonia, it can't do this?

Mr. Boyd: No, I'm not.

No, I'm not, although I think that when you have neither a discipline problem nor a drug use problem among the tested students, nor a safety among the students tested, I don't see how you get within Vernonia at all unless Vernonia sort of quietly, implicitly said what we really meant to say was drug test everybody because those principles do apply to all 24 million secondary school students in this Nation.

And so I don't--

Mr. Clement: May I ask on the drug test?

If you had a choice, in terms of which is the... I understand you think this is clearly unconstitutional.

Would it be more unconstitutional or less unconstitutional to test everybody?

Mr. Boyd: --I'm not really sure that one can... can rank more and less constitutional.

Both seem to me plainly unconstitutional.

The only constitutional way to go beyond individualized reasonable suspicion is to identify a problem in a school and devise a solution that has a close nexus to that particular problem, and that certainly isn't the case here.

Let me put that a little bit differently, Justice Stevens.

Mr. Clement: Of course, Justice Scalia would... would respond by saying, well, everybody knows there's a potential problem in every school in the country, and that's enough.

And why isn't that an effective argument?

Mr. Boyd: It's not... it's not enough because what I would say is that it is really that the balancing test behind the Fourth Amendment reasonableness requirement becomes one where there's no weight on one side of the... of the balance.

That's a little vague, so let me--

Mr. Clement: Why is that?

Now, they've come in with a brief on the other side and said, you know, despite the fact that we're spending X billion dollars, two-thirds of which goes on the supply side for interdiction--

Mr. Boyd: --Right.

Mr. Clement: --demand has stayed constant among teenagers, and it's about 20 to 30 percent of all of the children in these high schools who take drugs.

Now, if you know that that is a fact, why is it... and if you know this is a typical high school, why isn't that enough to do just what you said would be constitutional, to say here's a particular problem, 20 to 30 percent of the kids are taking drugs, and we want to come in with a solution that's tailored to that?

Mr. Boyd: Well, it's... you know, the number is probably, according to Mr. Clement, is more like 50 percent, and... and that 50 percent of... of the kids in the high schools are using drugs.

Mr. Clement: All right.

Then it's much worse than I thought.

Mr. Boyd: And--

[Laughter]

Mr. Clement: And then if that... if that's fine, then... then there is the problem you talked about, which I just heard you say.

And so, if... you said if there's a problem of a serious sort, and that this is tailored to that problem, they can do it.

All right.

So then why couldn't they do this on that theory?

Mr. Boyd: Well, if it's 50 percent nationally, this school in its reports to the Federal Government says that its school-wide drug use based on its own surveys, which is where the national data comes from, surveys, is 5 percent.

5 percent.

Mr. Clement: All right, 5 percent.

I mean, maybe... maybe they exaggerated in that report.

I guess I'd have to take the finding of the district court here, and when I read the district court opinion, I thought the district judge thought it was a fairly serious problem.

Mr. Boyd: Well--

Mr. Clement: He didn't put numbers on it.

Mr. Boyd: --Right, he did not.

Mr. Clement: But you used the word serious problem.

So--

Mr. Boyd: Okay.

What... what I wanted to say, Justice Breyer, is this.

If you take the school at their own word, that their data shows that it's at 5 percent, and you take the school board president and all three teachers at their word in saying, to the extent that that drug use... that 5 percent is there, it tends not to be among these activities, and if you take this Court seriously in articulating a nexus test, there simply is not a nexus between choosing these non-athletes who, both in terms of school versus Nation and the non-athletes and the school versus the other students, are really exceptionally unlikely to be using drugs.

It's a terribly poor--

Mr. Clement: --Now, in your opinion a school that did find that it was within, let's say, half the average, say 20 percent or 25 percent, and they did feel that a significant number of their extracurricular activity students were involved in that, if... if they've heard that through hearsay or any other way that was reasonably plausible for policy makers, they could then do this in your opinion.

Mr. Boyd: --No, they could not because there still is a need for a safety rationale.

There is not a single case in which drug testing has been upheld by any court, outside of this line of cases for extracurricular non-athletes.

Mr. Clement: Well, what was the safety rationale with golfers in Vernonia?

Mr. Boyd: Well, the safety rationale... I mean, certainly the Court in Vernonia didn't talk about golfers one way or another, but--

Mr. Clement: Well, but you're... you're saying that Vernonia was based on a safety rationale.

Its testing included golfers.

Mr. Boyd: --Well, in Vernonia, the Court talked at some length about the safety rationale.

Justice Kennedy, in his... in his Ferguson concurrence, also described the Vernonia holding as... as being about students who are athletes and face these danger risks.

Now, reasonableness, Your Honor... reasonableness... it does need to turn in the end on some kind of reasonable line drawing.

I think it was reasonable for the Court to say in Vernonia, the line that was drawn by Vernonia among athletes, the vast majority of whom are doing things that, if not involving physical contact, certainly involve exertion of the court, that in the opinion of the Court could cause death.

Death was what was... the word that was used by this Court.

Also, in Skinner, death from train accidents; in Von Raab, death from misguided bullets.

Those were the stakes in those cases.

Here you've got a choir.

Mr. Clement: How about death from overdose?

Mr. Boyd: Death from overdose is certainly a concern, but there's no--

Mr. Clement: I mean, do you think life and death is... is really not involved in... in the fight against drugs?

Mr. Boyd: --It absolutely is, Justice Scalia, and... and where there's--

Mr. Clement: Let's not minimize that.

Mr. Boyd: --I don't mean to, and where there is evidence of drug use among a group of students, then I--

Mr. Clement: As far as... as far as the extent of the drug use is concerned, this is an elected school board, isn't it?

Mr. Boyd: --It is.

Mr. Clement: Why... why should I trust your assessment of how serious the drug problem is and what measures are reasonable to counter that... that seriousness over the assessment of... of the local citizens who... who elect their school board, and their school board says we have a big enough problem that we want to use this draconian measure?

Mr. Boyd: Well, I think if we listen to the school board and to the school administration, who themselves are even closer to that problem, what they say is, we've identified enough of a problem that initially we want to test our athletes.

And they directed Mr. Jacobs to go off and draft a policy for athletes.

He did so.

They came back and he said, you know, we feel kind of bad about stigmatizing our athletes.

Who else can we test?

Now, that's not identifying a drug problem.

In fact, the best evidence in this case is what the school itself says to the Federal Government where the Federal Government says, now, remember these reports, when they write them, they say, tell us what you know, not based on just sort of vague evidence, but tell us what you really know about drug use, do some surveys, ask some questions, look around.

The school did that, and over the course of a number of years, they said consistently exactly what Vernonia said back before it had a problem.

We don't have any--

Mr. Clement: Suppose... suppose the school district said, we're going to have two schools and you can go to either one.

One, they don't have dogs or... or tests or anything else.

It's the druggie school.

[Laughter]

And... and the other school... and the other school is they have mandatory testing for everybody.

Would that be constitutional?

And then your client could go to the druggie school.

Mr. Boyd: --I don't think so because I think even by the nature of that hypothetical, it presupposes one of the schools is going to be vastly inferior on a number of grounds.

Mr. Clement: Vastly experience why?

Mr. Boyd: Excuse me?

Mr. Clement: Why?

Because there are drug users there.

Mr. Boyd: Well, I... I think... no, I don't think that's the reason why.

I think--

Mr. Clement: No parent... no parent would... would send the child to the first school that I suggested, other than perhaps your client wants to go there.

[Laughter]

Mr. Boyd: --Well, she absolutely would not, Your Honor.

I mean, Lindsay Earls is... is a young woman, a freshman at Dartmouth now, who hasn't used drugs.

She was drug tested and she passed, and no one has suspected her of using drugs.

I'm sure my... my opposing counsel would attest to that.

Mr. Clement: Can... can... doesn't... don't magnet schools have rules for uniforms and so forth that they're... they're completely optional?

A school district could have two schools, one with... one with no testing, the other with testing.

Then you have a choice.

Mr. Boyd: I think uniforms are a world apart.

There's not an intrusive blanket search.

Mr. Clement: Well, they're not covered by the Fourth Amendment.

Mr. Boyd: Exactly.

Mr. Clement: I mean, isn't that the problem?

Mr. Boyd: It is.

Mr. Clement: What do you... do you say just frankly to the argument, forget individualized need, forget special need entirely, forget suspicion?

We're standing in loco parentis and if we think it's reasonable to do it, we can do it.

What's the answer to that argument?

Mr. Boyd: I... I think the answer to the argument is the Fourth Amendment turns on reasonableness.

It's not a majority rules standard.

And I think you have to look at the incremental intrusion here, and this is a point that I don't think has been made today.

But with school athletes, they already submit a urine sample.

Mr. Clement: That doesn't answer the question.

The question... yes, it turns on reasonableness, but what Justice Souter's question suggests is that the... the issue is whether it would be reasonable for a parent who's concerned about drug use on the part... on the part of his children, to be this intrusive.

That is the question.

Mr. Boyd: For a parent to do it... I... well, I see that my time is up.

May I--

Mr. Clement: Yes.

I extend your time by 30 seconds.

Mr. Boyd: --Thank you.

A parent can do many things that are different than what a school could do.

The fact that a parent could do a drug test is exactly the reason... and in Tecumseh they could do that.

That is not a reason for a school to do it in circumstances where there is not a demonstrated problem among the students who were being tested with a... with a solution that's actually tailored in any reasonable fashion to meet that problem.

Otherwise--

Mr. Clement: Thank you, Mr. Boyd.

Ms. Meoli, you have 1 minute remaining.

Mr. Meoli: Mr. Chief Justice, if there are no further questions, I'll waive the remainder of my time.

Chief Justice Rehnquist: Very well.

The case is submitted.

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Owasso Independent School Dist. No. I011 v. Falvo - Oral Argument

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Owasso Independent School Dist. No. I011 v. Falvo

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Transcript:

ORAL ARGUMENT OF JERRY A. RICHARDSON ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument next in Number 00-1073, Jerry... correction, Owasso Independent School District No.

I-011, also known as the Owasso Public Schools, v. Kristja J. Falvo.

Mr. Richardson.

Mr. Richardson: Mr. Chief Justice, and may it please the Court:

The issue presented by this case is whether Congress, in enacting the Family Educational Rights and Privacy Act, intended to prohibit the common and longstanding practice of peer grading of routine homework papers, quizzes, and tests.

Congress did not intend FERPA to apply to such routine classroom activities, because Congress was concerned only with information that might have a long-term negative impact on a student's academic or career opportunities.

Mr. Richardson: Mr.--

--Did you take the position in the court of appeals that there is no private contract?

Mr. Richardson: We did not raise that issue in the court of appeals, Your Honor.

No, we did not.

Mr. Richardson: The court of appeals discussed it.

Mr. Richardson: The court of appeals raised it sua sponte, and it has been raised in amicus briefs submitted... in fact, three amici have discussed it.

Mr. Richardson: Why didn't you raise the issue?

Why isn't that more important than what you did raise?

Mr. Richardson: Candidly, Your Honor, we didn't raise it for a number of reasons.

Number 1, because in the district court there was a Fourteenth Amendment claim which clearly was actionable under section 1983.

Number 2, quite honestly we believe the merits argument regarding FERPA was stronger than the section 1983 argument.

Remember--

Mr. Richardson: Well, I just don't know if it's a good practice for you to force us to reach an issue you think is important if there's no cause of action anyway.

That just doesn't seem to me an orderly way to proceed.

Mr. Richardson: --Well, in hindsight I would agree with the Court that we should have approached it a different way.

Please recall, however, that at the time this case was filed, at the time the court of... at the time the district court entered its decision, and at the time the briefs were submitted in the Tenth Circuit, the Christiansen decision had not come down.

We did not have the benefit... we were under the impression, I should say, that we... that the family policy compliance officer's letter would be accorded Chevron deference, as the district court did.

We did not know that the Court was going to decide Christiansen and hold that such opinion letters were not entitled to such deference.

We made a tactical decision to focus on the merits rather than focus--

Mr. Richardson: Well--

Mr. Richardson: --on the 1983 aspect of it.

Mr. Richardson: --you also certainly had some justification on the private cause of action.

Seeing a number of decisions from this Court which have come out 5 to 4 one way and then 5 to 4 the other way--

Mr. Richardson: That's very true, Your Honor.

Mr. Richardson: --you're not sure that you're going to prevail on that.

Mr. Richardson: That's very true, Your Honor.

Both the decisions of this Court, with all due respect, are sometimes difficult for a practicing attorney to discern a clear line of--

Mr. Richardson: They're hard for us, too.

[Laughter]

Mr. Richardson: --And the other factor I would say is that the two decisions that the Tenth Circuit cited from other courts of appeals, the only two decisions that we were aware of from the Second Circuit, the Fay v. South Colonie School District decision, and from the Fifth Circuit, Tarka v. Cunningham, both of those courts of appeals had held that FERPA was actionable under 1983, so again, we made a strategic decision--

Mr. Richardson: Well, what if we think there's a real problem with that notion under this scheme, where the whole object was to have it administratively determined and it was funding mechanism, and under the act, the penalty for not following it is a cut-off of funding.

Now, what if we're quite concerned about that.

Mr. Richardson: --Oh, I--

Mr. Richardson: Do we send it back and let it be briefed and argued below?

Mr. Richardson: --No, I don't believe so, Your Honor.

The Tenth Circuit did rule on it, and we not only have... three amici in support of the petitioners addressed it.

Respondent herself did address it in her brief.

The only party that really hasn't briefed the issue is petitioners.

We would be the only one that would suffer any prejudice.

We have endorsed the position argued by the amici in the three briefs that have raised the issue.

I believe it's perfectly appropriate for the Court to decide that, and I believe that the Court... that the Court's decisions do indicate that FERPA is not actionable under 1983.

If you focus on the... go back and look at the language of the statute, of course, which is the ultimate issue, there is no rights creating language in FERPA the way there is, for instance, in title 9, that the Court focused on in Canon.

Also, this is a Spending Clause case.

There is no... the Spending Clause, as the Court has indicated repeatedly, is in the nature of a contract and there is no unambiguous indication here that Congress--

Mr. Richardson: You didn't raise this in your petition for certiorari, though, did you?

Mr. Richardson: --We didn't raise it... no, Your Honor, we didn't.

We didn't raise it in the petition for certiorari because we had not raised it in the court below and, frankly, we believed that the odds of persuading the Court to grant certiorari on an issue that we had not raised and briefed below were not very good and, again, our focus had always been on the merits of the case, and I believe we should win on the merits, but I also believe that section 1983 is not... does not provide a cause of action under FERPA.

FERPA says... it uses the language, no funds shall be available to an educational agency or institution that has a policy or practice of allowing the disclosure of education records.

That is clearly talking about a systematic practice on the part of an educational agency or institution.

If a section 1983 remedy were allowed, then what about an individual teacher who, in violation of the district's own policy or practice... the district, say, has a policy that we will not release it, yet an individual teacher makes a deliberate choice to release the information.

Under 1983 that teacher would have to be held liable, it would seem to me, even though the district had done exactly what Congress commanded.

The district had enacted a policy saying, don't do that, so that clearly militates against a 1983 cause of action.

In addition, FERPA--

Mr. Richardson: Do you know anything about how this act is enforced on the Federal side?

Have there been any fund terminations, because the only thing in the statute itself is fund termination, isn't that right?

Mr. Richardson: --That is correct, Your Honor, and I'm not aware of any decisions.

There is certainly nothing in the record to indicate that there's ever been a funding... well, I may have overspoken.

I do not recall from the record.

There might be something in the lodging of those extensive letters from the FPCO, but I do not recall, and do not... cannot represent to the Court that there's anything in the record regarding there ever having been a funding cut-off.

Mr. Richardson: Well, I guess we are taking you away from the question on which we granted certiorari.

As I understand the position of the respondent here, and tell me if I'm incorrect, if the respondent is correct, the teacher would have to keep a record of all of these quizzes as part of the permanent record, is that the necessary result of the respondent's argument?

Mr. Richardson: The respondent seems to take the position, which is contrary to what the Tenth Circuit said... the respondent seems to take the position that only records, only grades or scores that are recorded in the teacher's grade book are education records.

The Tenth Circuit clearly said that's not the case.

The Tenth Circuit clearly said, even if the grade is never recorded in a teacher's grade book, the mere fact that the teacher receives it and uses it for some purpose, maybe even just to evaluate her own teaching performance, and determine whether the class is ready to move on to the next lesson, that makes it an education record.

Respondents have backed away from that.

They argue in their brief at least, or she argues in her brief at least that it has to be recorded in the teacher's grade book, but we believe that even that is a far more broad definition of education records than what Congress plainly says in the statute.

The statute defines education records with a two-part definition.

It's those records, files, documents, or other materials that contain personally identifiable information and are maintained by an educational agency or institution, or by a person acting for an educational agency or institution.

Now, maintained has to have some substantive meaning, because it's half of the definition.

Clearly, homework papers are personally identifiable.

There's no doubt about that.

But if maintained doesn't mean anything more than what the Tenth Circuit said it meant, simply possessed by a teacher for some brief period of time, then that's really writing that word out of the definition.

Any document that comes across a teacher's desk would be an education record.

In fact, chalkboard work would have to be an education record.

If a teacher asks a student to come to the chalkboard, do a math problem, that's personally identifiable information.

The entire class can see this student working a math problem.

That math problem is maintained on the chalkboard until the teacher directs a student either to erase it, or erases it herself, or himself.

Mr. Richardson: What's your definition of maintain, what, a week, a month?

Mr. Richardson: I don't think that--

Mr. Richardson: Make me an offer.

What's your--

[Laughter]

Mr. Richardson: --Your Honor, I think that what Congress is getting at with the word maintained, it goes back to what I said in the opening statement, which is, information that could have a long-term effect on the student's career.

I think Congress was talking about... and the legislative history bears this out.

I know Your Honor is not particularly persuaded by that--

Mr. Richardson: Some of my colleagues like that stuff.

[Laughter]

Mr. Richardson: --by that argument, but Congress was concerned about things that would have a long-term effect.

What I would suggest the Court focus on, is this the kind of document that's going to be looked at by a college admissions officer?

Is this the kind of document that's going to be looked at by a potential employer, or a governmental agency at some point down the road?

Mr. Richardson: Is there a difference between your position and... the Government said, it means, educational records means institutional records.

Mr. Richardson: No.

Mr. Richardson: The kind that would be in the principal's office and not in the teacher's drawer.

Mr. Richardson: No.

No, Your Honor.

Our position and the Government's, with that regard I believe the Government's current position, as reflected in the brief of the United States, are consistent.

I don't think--

Mr. Richardson: It's not been the position that the Government, that this FPCO has taken consistently, because wasn't there... didn't they say that the teacher's grade book--

Mr. Richardson: --Yes.

Mr. Richardson: --did count as an educational record?

Mr. Richardson: Yes.

The FPCO had previously taken a much broader interpretation of education records, and had taken the position which essentially seems now to be adopted by the respondent, that once the teacher main... once the teacher receives possession of the grade, or the score, it becomes an education record.

The United States has disavowed that position and said that is clearly more broad than what the... but the key point--

Mr. Richardson: But if your definition is correct, and it's that limited that it's only the stuff the school keeps that will go on into the permanent record of the student, what would be the reason for that exception that the statute contains for, you know, personal notes that a teacher makes?

You wouldn't need that exception.

That stuff never goes down to the central office, much less is kept for, you know, for future reference.

Mr. Richardson: --Well, not necessarily, Your Honor, and that... you're referring, I believe, to the sole possession notes exception--

Mr. Richardson: Sole--

Mr. Richardson: --but that's not limited to grade books.

In fact, that--

Mr. Richardson: --Where is it?

Can we look at that?

What's the section?

Mr. Richardson: --Yes, Your Honor.

That's section (a)(4)(B)(i).

Mr. Richardson: Where is it, in the briefs?

Appendix page 4 of your brief?

Mr. Richardson: Yes.

Yes.

I'm sorry.

B, capital (B), then small (i), the term education records does not include... there's nothing in this definition about grade books.

The reference to the grade books, and it's really not a reference to grade books, it's a reference to record books, is from the legislative history, where the Court... where the Congress said, this exception was meant to apply to things used as memory aids.

I would argue that a grade book is not something that is intended as a memory aid.

Mr. Richardson: But my point is, you wouldn't need that exception.

Mr. Richardson: Well--

Mr. Richardson: If... that... I mean, that exception suggests that other things that are only... only held in the sole possession of the maker--

Mr. Richardson: --I disagree that you would not need that.

Mr. Richardson: --could be within the statute.

Why would you need that exception?

Mr. Richardson: Well, for instance, a document... a counseling record, for instance, perhaps the student had experienced some emotional problems, or something--

Mr. Richardson: Right.

Mr. Richardson: --that has come to the attention of a counselor.

The counselor writes a confidential memorandum to her permanent file.

That is an institutional record.

It's not something that's going to be thrown away, but it's also, as long as the counselor doesn't put that document, that memorandum in the institution records, or doesn't show it to another person, that's a sole possession notes exception, and would not--

Mr. Richardson: And you think that's the kind of thing that would come within your definition of permanent records, the kind of things that go on to college admissions offices, and so forth?

That's what I thought you were saying.

Mr. Richardson: --Well, I think that's--

Mr. Richardson: But now you're saying, even the notes, personal notes kept by a counselor come... would come within this statute but for that exception, right?

Mr. Richardson: --Well, but for that exception.

I think that's why the exception is there, is to keep materials like that from coming into the possession--

Mr. Richardson: Exactly.

Mr. Richardson: --because materials like that are maintained by an educational agency or institution.

They are a... counselors that have a record of a student with emotional problems--

Mr. Richardson: So are a teacher's grade books.

Why in that respect is a teacher's grade book different from the counselor's notes?

Mr. Richardson: --I believe because a grade book is, in my opinion, Your Honor, more of an evaluation instrument rather than a record.

A transcript shows what the student earned in a grade, or in a group of grades during the course of his academic career.

A grade book is more than simply a dry record of the percentages that a student achieved during his time in his class.

For instance, during a relevant grading period a student might start out doing very average C work.

The student then might near the end of the grading period suddenly get it, and start doing B and A work.

The teacher would, I think any teacher in America would look at a grade book containing those records and would not simply go, okay, the total average for this grading period is a 78.5, he or she gets a C.

The teacher would look at the improvement shown in the student's performance and would in all likelihood round it up and give the student a B.

The grade book is an evaluation instrument.

It is not simply a collection of records.

Mr. Richardson: And the counselor's notes aren't?

The counselor's notes aren't?

Mr. Richardson: Well, that argument might very well apply to counselor's notes as well.

Mr. Richardson: I mean, that's the problem.

Your notion of what are records maintained just does not square with the existence of that exception.

I mean, sometimes Congress does more harm than good by putting in an exception, because the exception suggests that if it had not been there, the stuff would have been covered.

Maybe Congress didn't want this stuff to be covered, but--

Mr. Richardson: Well, I think that's an alternative possibility, Your Honor, is that it's a belt and suspenders approach that Congress never intended grade books to be covered, but just in case somebody happened to be inclined to read them that way, we're going to put this exception in as well.

Mr. Richardson: --We usually don't interpret statutes that way.

Mr. Richardson: Well, I can understand--

Mr. Richardson: You started out by referring to maintain as implying some significant period.

Mr. Richardson: --Yes.

Mr. Richardson: And it would be consistent with that argument that you say, well, a teacher's grade book is kept for the year, but it doesn't become normally part of the institutional records of the school, so it's not maintained for a substantial enough period of time to qualify, whereas... and I just don't know factually about this... maybe the guidance counselor's records are simply kept forever.

I don't know.

I mean, is that kind of a durational criterion something you want to stand on here?

Mr. Richardson: Not in a... no, not a pure durational criteria.

I don't think that is the key.

Again, many grade books are not... I don't think Congress meant to draw a line and say, okay, you keep it 6 months, it's maintained, if you keep it 5 months and 3 weeks and 6 days it's not maintained.

I don't think Congress intended to do that, and I'm not asking the Court to do that.

I think Congress again intended to get at records that are, as a practical matter, maintained over a long period of time that are institutional records.

Mr. Richardson: But what is the definition of maintain, then, that you're using?

Mr. Richardson: The definition of maintain that I would ask the Court to adopt is its common meaning, to preserve, to retain.

Mr. Richardson: Yes, but don't... doesn't that force us into some kind of a durational... and I'm not saying this is an objection to your argument, particularly, but I mean, doesn't this force us into some kind of a durational criterion?

The record of the quiz which student A corrects the student B and calls out to the teacher, the number that student B puts on top of the quiz is a record for a short period of time.

Mr. Richardson: But it's not the kind--

Mr. Richardson: I mean, something is recorded, and you're saying, well, sure, they can't be getting at that, but if they're not getting at that, then it's either got to be for one of two reasons, either the kid who does the correction isn't a person who maintains, who makes a record by definition--

Mr. Richardson: --Correct.

Mr. Richardson: --or a record is something that has got to be maintained longer than the period that it takes for some kid to call a number out to the teacher, which is a durational criteria.

Mr. Richardson: That's true, and that's the same reason that a chalkboard, work on a chalkboard would not be maintained in the meaning of FERPA, even though it might be up there not only for a minute or two... I mean, in some college--

Mr. Richardson: May I ask you--

Mr. Richardson: --courses you may have chalkboard work that's up there for a week or more.

Mr. Richardson: --do you concede, or do you not, that the announcement by one student of another student's grades within the classroom and not outside the classroom is a release of information within (B)(i)?

Mr. Richardson: No, absolutely not.

Mr. Richardson: Because?

Mr. Richardson: Because it's not an education record.

You can only have--

Mr. Richardson: Assuming it was an educational record, would you say that it's a release when it's revealed by one student to another within the classroom?

Mr. Richardson: --No, I don't believe... in the context of pure grading, it would make no sense to say that one student, that it's not a release if the student grading the paper records the grade.

I mean, in that context, the Tenth Circuit's analysis would be right.

If it is an education record, then the fact that one student sees it is just as damming as the fact that the entire class sees it, it seems to me, but it's not an education record, therefore there's no question of release.

The other point I would make, going back to the grade book--

Mr. Richardson: I'm slightly worried about that, because suppose that... I take it attendance records are also... they probably are maintained, and they are records, aren't they?

Mr. Richardson: --Attendance... well, again I would say that attendance records are not the kind of information--

Mr. Richardson: Thank you, Mr. Richardson.

Mr. Kneedler, we'll hear from you.

ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Kneedler: Mr. Chief Justice, and may it please the Court:

The Family Educational Rights and Privacy Act does not prohibit the common classroom practice of one student grading another student's paper, or other common classroom and teaching practices.

FERPA regulates the records maintained by an institution, not the homework and classwork of students.

Congress did not intend for FERPA to intrude into the day-to-day activities of hundreds of thousands of classrooms across the Nation, or the way in which teachers conduct the educational process in those classrooms, or the way in which students interact with each other.

Mr. Richardson: Does the act cover a teacher's grade book that she keeps during the term?

Mr. Kneedler: It addresses the grade book, in our view, by including it... we think ordinarily it would come within the sole possession exception in the act.

Now, I think it's important to recognize that even a grade book... there may be no one uniform practice about the way a grade book is handled.

It could be that a particular school would regard the grade book as an official school record from the outset, where the principal always has access to it, and the teacher is really maintaining a record on behalf of the institution in keeping the grade book.

You could have other school systems in which the grade book is essentially used by and for the future as a memory jog, and all that she ever discloses to the front office is the semester grade.

In that event, we think that the grade book would fall within the sole possession exception, so that this is one of the things about FERPA, is that it addresses the situation in which actual record-keeping practices may vary, or let me change that, actual pedagogical practices may vary widely from school district to school district, and that's why we think importantly this act did not enter the classroom by addressing the way teachers handle papers, give feedback to students, have students grade each other's--

Mr. Richardson: What about posting the results of the exam, the big exam, mid-term exam, and the student posts the results on the board.

Mr. Kneedler: --I think under the position we've espoused here, that would not be a violation of the act.

FPCO has taken the position in the past that it would be.

I think it would depend, though, or may depend on the way in which the grades were assembled.

I think if the teacher or professor, let's say, in college, the only grades probably ever, ever assembled or marked down for a college course may be the final exam grade.

The professor may have a grade sheet, a roster in which the professor marks down the grade for everyone in that class and sends it to the registrar, and from that list puts a list of final grades for the course.

I think at that point, the fact that the grades would be derived from something that would be regarded as an institutional record, in that instance I think the posting of the grades may well be a violation.

Mr. Richardson: But if he posts it before he sends it on to the administration office--

Mr. Kneedler: If it's posted... and this may sound technical, but this is where the two categories we think intersect.

If a grade is divulged from the paper, he takes the grade book and puts A or B or C on the paper, we don't think that the student work itself is an institutional record, and it's not--

Mr. Richardson: --But you're also, I think, saying that the disclosure has got to be of the record, not merely of information that may ultimately end up in a record?

Mr. Kneedler: --That's exactly true, and there are analogous situations in which that's true, for instance the attorney-client privilege, that the attorney can't disclose something that he's learned from the client, but that doesn't mean that the same information in the possession of the client is privileged.

Mr. Richardson: How is this... the more I hear, I... there used to be schools in any case that would say, the following 10 percent of the class graduates with honors, the next 40 percent, okay, and sort of honors, and the last 60 percent, well, they graduated, didn't they.

I mean, they didn't put it quite like that, but it was all public, in the newspaper.

Mr. Kneedler: Yes.

Mr. Richardson: Now, is that all forbidden now?

Mr. Kneedler: No.

Quite aside from the issue in this case, this statute contains an exception for what's called directory information, which includes common information about a student, the fact of their attendance, et cetera, and that includes honors awarded to a student.

That information can be released.

The school district or higher education institution has to announce a policy.

Mr. Richardson: What are we dealing with here?

You don't have much time, and I am concerned.

Are we dealing, do you think, just with the student grading and the knowledge obtained thereby, or are we dealing with the teacher's grade book, or both?

Mr. Kneedler: All that is strictly presented in this case is the practice of one student grading another's paper before the teacher has gotten the papers themselves or entered them in the grade book.

Mr. Richardson: And as to that, what is your succinct explanation of why it's not covered by the statute?

Mr. Kneedler: There's no educational record maintained by the school.

Mr. Richardson: Because it isn't maintained, or because it isn't a record?

Mr. Kneedler: Well, whether it's maintained is part of the definition of educational record.

An educational record is a record or document containing information directly related to the student that is maintained by the school and, in our view, maintained in that situation means maintained as an institutional record, and we think that the act generally draws a distinction between the institutional records and the classroom records of the teacher, and I--

Mr. Richardson: Mr. Kneedler, do you have a position on the threshold question?

Is there a claim for relief, a private claim for relief?

Mr. Kneedler: --We do not have a position on that.

That was not presented in the petition and therefore we did not address it in our brief, and under this Court's Air Couriers decision, the existence of a cause of action is not jurisdictional and may be assumed.

We... I would point out, though, that the ability of the Department of Education to cut off funds is not the sort of factor that has in other situations been thought to be sufficient to preclude a 1983 cause of action.

In Blessing v. Freestone and other cases, this Court has said that that is a different sort of remedy and does not preclude a private right of action.

Mr. Richardson: Mr. Kneedler, you said it doesn't include the teacher's classroom records.

Why, by reason of that exception that we were talking about earlier--

Mr. Kneedler: Well--

Mr. Richardson: --the sole possession exception?

Mr. Kneedler: --Two different questions.

One is whether it covers the student's work, and we think that that--

Mr. Richardson: Yes, I understand that.

Mr. Kneedler: --That that's not covered.

By teacher's records, if you mean the grade book, yes, we think that that would fall under the... or, what we commonly call grade book, some way in which the teacher keeps track of the student's progress during the marking period or--

Mr. Richardson: It's covered by the sole possession exception?

Mr. Kneedler: --That's correct.

Mr. Richardson: Which means it would have been embraced by the statute, but for that.

Mr. Kneedler: That's probably true, but it's... one thing to bear in mind here is, this act was passed in one form early in 1974.

Some difficulties were identified, and it was amended and revised and elaborated upon later in 1974, and there is a description by Senators Pell and Buckley describing the original version of the act, in which they indicated that personal records were not the sort of thing that was intended to be included, because the act then used the definition of official records that were intended to be for school use, and they said that these informal notes, and I think teacher notes would be include din that, were not intended to be included in the act to begin with.

So I think that there is a way in which that gives emphasis to something that may well have been excluded anyway, but they do fall within the coverage of the act, because the act was revised to meet some concerns that had been raised by local school districts.

I did want to point out two things in response to Justice Kennedy's question.

This act does not require a school district to retain any records.

It may destroy records at any time.

It only addresses rights of parents while the records are actually retained.

The other point is, we don't think that there is anything talismanic about the duration--

Mr. Richardson: But they don't have to be retained for 45 days or anything?

Mr. Kneedler: --If a request is made for them they have to be retained until the request is resolved, a request to inspect them, but if the parent or student, adult student has not requested it, nothing in this act requires the school district to keep them.

We don't think that duration is dispositive.

We think because the act was designed... we point this out at pages 20 and 21 of our brief, and page 23 of our brief... was intended to reach records that the school was going to be... use to make decisions about the student in an institutional way, institutional decisions about the student, which we think are different from what goes on in the classroom in the day-to-day learning experience, and so we think that that could include records, or some materials that are kept by a principal that wouldn't necessarily go into the permanent record, but would be part of the school's overall supervision of the student for that school year, so we do not think that the duration of the period is dispositive.

Having said that, what gave rise to this act was concerns about the sorts of things that were in the permanent institutional records of the student, the sorts of things that would follow the student, or that law enforcement officers or probation officers or others would have free access to when parents did not, and there was concern that there might be irrelevant information, or inaccurate or anecdotal information in records that would make a real difference in the child's life, and that's what this act is directed towards.

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Mr. Wright, we'll hear from you.

ORAL ARGUMENT OF WILFRED K. WRIGHT, JR. ON BEHALF OF THE RESPONDENT

Mr. Wright: Mr. Chief Justice, and may it please the Court:

The Family Educational Rights and Privacy Act was drafted by Senator Buckley, also known as the Buckley Amendment.

Senator Buckley in 1974 stated that most conscientious teachers would have no problem gaining the consent of a parent, provided the teacher has demonstrated the worth of his proposal.

In other words, Senator Buckley did intend the Family Educational Rights and Privacy Act to reach out into the record keeping process that included the teacher's work or the... or the records that were being maintained by the teacher.

What the petitioners are requesting of this Court is to have unfettered and unshackled right to disclose exam grades to whomever they choose.

If in fact, only the cumulative or the permanent or the transcript record is the only record that is an education record, then a teacher like Justice Scalia mentioned could post the exam scores in the local newspaper, if she wanted to, prior to handing them in to the central custodian.

Such a result was not intended--

Mr. Richardson: Well, but has that ever happened?

Had any teacher ever posted exam scores in the local newspaper?

Mr. Wright: --Under the facts of this particular case--

Mr. Richardson: No.

I say, was there any... any incident of that sort that had ever been called to the attention of Congress?

I mean, was that really what Congress was trying to prevent?

Mr. Wright: --Not that particular action, but that would be a consequence of... of finding that the education records would be just a permanent--

Mr. Richardson: Well, it would be... the consequence you describe would allow a teacher to do something that no teacher has ever done.

Mr. Wright: --Contrary, Your Honor, I believe that the teachers, not only in this particular case, but in many cases, especially in the... the Krebs v. the Rutgers University case, were disclosing exam scores--

Mr. Richardson: They were posting them in newspapers?

Mr. Wright: --No.

They weren't posting them in newspapers.

Mr. Richardson: Well, that was what I asked you about because you mentioned it.

Mr. Wright: That's correct, Your Honor.

They weren't posting them in newspapers.

Mr. Richardson: If... even if we... we take the... the expansive definition that you would use, what is your response to the point that came out in... in my exchange with Mr. Kneedler, that the... that the mere disclosure of information, which may ultimately end up in a record, but a disclosure before that information is, in fact, recorded would not be prohibited by the act?

Mr. Wright: Here we have a situation, the facts of this case, that happened simultaneously.

The teacher is gathering--

Mr. Richardson: Well, do... I don't want to cut off your answer there.

But as... as a general proposition... it may not apply here, but as a general proposition, do you agree with Mr. Kneedler?

Mr. Wright: --If it doesn't make it into the teacher's maintenance of the record.

Mr. Richardson: No.

I think the assumption is it may well make it into.

It simply hasn't made it into the record yet.

At that point, before it makes it into the record, is the disclosure a violation of... of the act?

Mr. Wright: I believe that the teacher is disclosing the information that she is intending to collect.

It would be no different than a doctor sitting five patients down in front of them, having them exchange their diagnostic test, and saying, please call out that information to me.

Mr. Richardson: Well, yes--

Mr. Wright: That would not be permitted.

Mr. Richardson: --we... we don't know whether there's a statute that covers that, and we've got a statute here.

You're saying that the words of the statute would... would make it an... a violation to disclose the information that may ultimately be recorded, even before it is in fact recorded and made part of a record, as you define record.

Mr. Wright: No.

As I define record, here we have a gathering of the information, and that's as far as I'm going.

And that is, the teacher is gathering the information.

She is collecting it.

This whole process is simultaneous.

They're having the students call out the grades.

Ms. Falvo's children were having to call out the grades without her consent.

Mr. Richardson: Is the calling out a record?

What... what does the record consist of?

Mr. Wright: That's gathering the information.

The teacher writing--

Mr. Richardson: What... what is the definition of record?

I mean, it... does it include--

Mr. Wright: --Records, files, documents, something--

Mr. Richardson: --Something written.

Yes, but when... yes, and when the--

Mr. Wright: --She's making the record.

Mr. Richardson: --when the kid speaks, nothing has been written yet.

Records, files, documents, and other materials.

I don't see what there is in this case that falls within that category.

Mr. Wright: The grade.

Mr. Richardson: The grade is not a record, file, document, or other material.

Mr. Wright: She's making--

Mr. Richardson: A.

You know, I say, A.

The child shouts out, A.

That is a record?

Mr. Wright: --And I write it down as you shout it out.

Mr. Richardson: Oh, after you write it down, maybe when the teacher writes it down... at most when the teacher writes it down in her grade book, you say it... it then becomes a record.

But she doesn't disclose that grade book.

The only thing that's been disclosed is the child's, after he grades that paper, shouting out A.

What... what is the record that has been disclosed when the child does that?

Mr. Wright: That is the record that has been disclosed because the teacher is making the record.

Mr. Richardson: So you're saying the information before it becomes a... before it becomes a record, because it doesn't become a record until the child says it, and then the teacher writes it down.

You're saying the information even before it becomes a record cannot be disclosed.

Mr. Wright: If she's collecting it, yes.

Mr. Richardson: Suppose a child--

--Where do you get that from the statute?

Mr. Wright: (B)(i).

It would be illogical for a teacher to have a legal obligation to protect the confidentiality of that grade that she just created in her grade book, yet have the student call out the grade.

It is no longer--

Mr. Richardson: It may well be illogical, but I don't see anything in the statute that... that prohibits it, anymore... you could say it's just as illogical to prohibit the teacher from disclosing that information, but if somebody else happens to know it, for that person to be perfectly free to say, you know, Jack Smith's kid got a D in that test.

Does that violate the statute?

No, of course, it doesn't because the statute only covers certain things, and what it covers is records.

I don't see what record has been disclosed here.

Mr. Wright: --If a teacher has a legal obligation to protect the information in the grade book, if the grade book is an education record--

Mr. Richardson: It isn't in the grade book yet.

Your... your objection is the child grades the paper and says to the class, says to the teacher, A.

What... what is the record that is being disclosed then?

Mr. Wright: --She's making the record.

The facts of this case--

Mr. Richardson: Ah, yes.

Mr. Wright: --where she's making the record.

Mr. Richardson: The teacher is making the record after the child says, A.

Mr. Wright: That is true.

Mr. Richardson: What about a child who... I remember in my third grade, my teacher, who thought it was her job to teach, had problems sometimes with discipline.

And I might talk too much.

I used to.

[Laughter]

And... and so the teacher would say that's reasoned self-discipline.

You lack it.

And I'd get a check.

And you'd get three checks, and you get a mark on your report card.

All right?

And say, Stephen, that's the third time.

You now have a mark on your report card.

All right.

Now, she did that in front of the class because she felt that this is the way I keep my class in order and it helps me teach.

She did the same thing with her grades, many of them.

She did the same thing with attendance, by the way.

We all said, here, here, sometimes present.

All right.

In your view, are all those things now forbidden by Senator Buckley's statute that the teacher cannot run her class that way?

Mr. Wright: Not all of those items are forbidden, Your Honor.

The Socratic method is not forbidden, Your Honor.

Going to the chalkboard is not forbidden.

Mr. Richardson: No, no.

Let's use my examples.

My example was I act up in class.

The teacher says you get a check for reasoned self-discipline.

She says to the whole class... that's how she keeps order in her class.

That used to be true in the third grade.

My teacher, Miss Rosmond--

[Laughter]

--whom I recall with fondness, did--

[Laughter]

All right.

But now... now, what about my example?

I'd like an answer to that example.

Mr. Wright: If she's making a record, I would say that would be a disclosure.

Mr. Richardson: Okay.

My next question is each morning we came in and said, present or here, and she'd keep a record.

Now, is that also forbidden by this statute, unless you go through the elaborate procedures in the directory section, which I don't know any school that would have done for something like that?

But is that, in the absence of that, also forbidden?

Mr. Wright: No.

That's part of the directory information.

Mr. Richardson: No, no.

If they don't go through the procedures.

In other words, they... the teacher doesn't announce to every parent, now we want to have a hearing for you to see whether we say to your child, here or not here.

Mr. Wright: Under your--

Mr. Richardson: That would be a violation in your view on the same theory.

Mr. Wright: --It'd be a violation, but it's not under the statute.

Mr. Richardson: Well, all right.

My question ultimately then, given our examples, is do we really think that Senator Buckley intended to so interfere with the way in which a teacher would run his or her classroom--

Mr. Wright: Senator--

Mr. Richardson: --for teaching and disciplinary purposes.

And... and if so, do we think that the Congress agreed with Senator Buckley?

[Laughter]

Mr. Wright: --That's correct, because in answer to... to Justice Breyer, Senator Buckley specifically stated, some may argue that my amendment will create too much additional work and red tape.

To that argument, I must reply that I am no... not so much concerned about the workload or convenience of the educational bureaucracy.

He was not concerned about what type of convenience.

Another way--

Mr. Richardson: So no... no gold stars on the... on the paper that goes back to the student that any other student can see, or in these days, a Post-it with a happy face?

[Laughter]

The Federal Government prohibits that.

Mr. Wright: --He's intending to give the parent the right to consent to the release of information.

We believe the grade book is information.

Handing back a paper, it could be handed back to the child upside down if it has a grade on it.

There are a hundred ways to skin this cat.

Mr. Richardson: If I... if I don't agree with you on this... and I thought my examples that I gave are extreme instances, and it doesn't cover that.

Can you give me any help at all as to how this statute might be interpreted to keep its basic point, which... which might be a desirable one, but not to cover my extreme cases?

Mr. Wright: Senator Buckley said another statement.

Simple forms could be mailed to parents to obtain their permission for certain activities with regard to their children.

I would also further note that many schools already require the prior written consent of parents on a number of matters, including testing, special projects, drug programs, sex education, not to mention permission slips to go on field trips, permission slips to go play on the football team, permission slips to sell candy.

Parents are bombarded with consent forms.

What the consent form does is it informs the parent as to what is happening to their child with respect to their education.

The teacher does not have the fundamental right to educate the child.

Ms.--

Mr. Richardson: But it gives the individual... it gives the individual parent a veto, and that's what you're saying.

You have a school district.

Education is one of the... the areas that is most traditionally handled locally.

Right?

And your... your scheme is that any one parent in any classroom is going to have a veto over how that classroom operates.

Mr. Wright: --Not necessarily, Your Honor.

One parent has a veto with respect to their one child because they have the fundamental parental right to educate their child.

The teacher does not; they do.

And that's exactly what Senator Buckley was... was intending with the Buckley Amendment.

Mr. Richardson: So the rules... any parent can make the rules for that parent's child, what that parent wants them to be, not the teacher, not the school district.

Mr. Wright: With respect to--

Mr. Richardson: You think that's what Senator Buckley meant.

Mr. Wright: --Yes, with respect to education records, that is correct, especially scores on exams.

We're dealing with a special ed student here that was being mainstreamed in the classroom and having his grades called out loud.

Mr. Richardson: As long as the teacher records them, you say that.

But I think you said all this could go on, the teacher could give a spot quiz and say, I'm not counting it today, but everybody wants to know how everybody performed, so we're going to have the grades called out.

Mr. Wright: That's possibly true, but there are other means.

Even the district court found--

Mr. Richardson: But what is the answer to that?

Is it... is it... the teacher gives a quiz, has the grades called out, but doesn't record in her grade book.

Mr. Wright: --If she's not recording it in her grade book, that is not a violation.

Mr. Richardson: And if she says, class, I want to give you an incentive to do better, so I'm going to write down these grades but I'm going to discount... at the end of the term I'm going to discount the lower two-thirds of them.

Mr. Wright: It's an education record.

The fact that the teacher only uses three exam scores that she's written in her grade book as opposed to five exam scores does not nullify the parent's right to consent to the release of that exam grade in the classroom.

Mr. Richardson: Is it perfectly clear that the disclosure of information within the classroom setting is a release of education records within the meaning of (B)(i)?

Mr. Wright: Within the meaning of (B)(i)--

Mr. Richardson: Yes.

Mr. Wright: --our interpretation is it has to be.

Mr. Richardson: Why do you say that if... if it has the more formal concern about release to the public and law enforcement and so forth?

It seems to me that there's an awful lot of information about special students and others that... that the student's classmates are inevitably going to learn about just by being in class seeing what goes on in class.

It isn't, though, the... his general performance is a secret to the... to the other... to his classmates.

Mr. Wright: That... that's correct, Your Honor.

In fact, FERPA is not a panacea for all performances.

In fact, the directory information exception to the education record specifically says that participation in school activities is fine.

Mr. Richardson: But this particular school activity, it's not fine.

I'm reading off the answers in... in the presence of no one else except your classmates who generally have a pretty good idea of who the good students are and who... who the bad students are.

But you still say that's... that's clearly a release within the meaning of the statute in your view.

Mr. Wright: The grade that's going in the grade book is a release, Your Honor.

Mr. Richardson: You think it's especially... especially mean with respect to this special... special ed student who's being mainstreamed.

What... what do you say to the petitioners' footnote in their reply brief that the record establishes that the only special education service Philip received was 45 minutes of speech therapy once a week?

And that was discontinued, with respondent's consent, prior to the end of Philip's seventh grade year.

That's not as appealing as your description of this... of this student.

Mr. Wright: The fact that a special ed--

Mr. Richardson: Is that... is that what you mean by a special ed student, a student who is receiving 45 minutes of speech therapy once a... once a week?

Mr. Wright: --Yes.

I think that's--

Mr. Richardson: That's what you mean by a special... special ed student.

Mr. Wright: --He was.

He was IEP.

He was in an IEP program under the IDE Act.

Mr. Richardson: 45 minutes a week.

Did he get anything else other than that?

Of speech therapy.

What did he have?

A stutter perhaps?

Mr. Wright: No.

He was slow in reading, Your Honor.

He was slow in reading the exams, the pop quizzes, Your Honor.

I mean--

Mr. Richardson: Well, how would speech therapy help that?

Mr. Wright: --I don't know, Your Honor.

Those questions were not raised.

None of those material facts were part of the record.

Mr. Richardson: Well, I suggest you not paint your client as more sympathetic than he is.

Mr. Wright: I am just trying to be sensitive not only to just that one child, but even to her other children who are also part of this case with respect to their A's.

They were straight A students.

So rather... whether one child receives low grades or whether one child receives stellar performance in the classroom, it does not matter.

It is still a release of a grade.

Those children know the grade.

The parents of those children know the grade.

When a parent goes to the parent-teacher conference and she shows up and the teacher says, all right, these are the... we're going to keep this private, it's not private information.

It's already been disclosed.

That information is not private.

How can the teacher keep concealed that which she already revealed?

And even the district court found that hard to believe.

And... and that's... that's the logic of the Tenth Circuit.

The Tenth Circuit didn't prohibit the practice.

The Tenth Circuit merely suggested that the statute on its face, the plain language of the statute, says, give the parent the right to consent.

That was the intent of Senator Buckley: give the parent the right to consent to the release.

Mr. Richardson: If it's an educational record as defined under the act and maintained as such... and that's really the issue, whether it... it's covered at this stage of a fellow student calling out a grade.

Mr. Wright: It's covered because in the facts of this case, the teacher is using that protocol to collect the information.

Mr. Richardson: Well, but that is not the text of the statute.

You have to overcome the fact that the literal language wouldn't cover it.

Mr. Wright: The literal language interpreted in the context of the parent's right to consent, in other words, keeping that information confidential.

If there is a legal obligation on the part of the teacher to keep that grade confidential once it's in her hands--

Mr. Richardson: She had... they have no right to keep information confidential.

They have a right to keep the record confidential.

If the information is obtained from some source other than the record, the statute does not... does not address its release.

Mr. Wright: --I respectfully disagree.

The statute specifically says, which has a policy or practice of permitting the release of education records or personally identifiable information contained therein--

Mr. Richardson: Contained in the records.

Mr. Wright: --She's making the record.

She's maintaining the record.

That has to be interpreted in the context of what we're doing here.

And if we look at Whalen v. Roe--

Mr. Richardson: I'm way out-of-date probably, but again, when I used to be in school, grades were thought of, to some degree, as an incentive, that they weren't totally private.

One of their functions is they should be at least told to other people in the class in order to get them to work harder or to strive harder.

Now, in... the term of records, when they talk about records, which I don't think defines itself, is there any indication in this history that that idea that if a teacher wants to use grades as a kind of incentive device, that that should not be up to the teacher?

She isn't able to do it?

I mean, is there... see, records doesn't define itself, and I'm looking for a line.

Mr. Wright: --Congress intended that--

Mr. Richardson: In... in the absence of some other line, I might tend to think a line should be drawn to give the teacher maximum freedom to run his or her class the way the teacher feels is best educationally.

That's different from having a record in an office somewhere in the clerk's office in the school.

See, that's where... that's where I'm sort of looking for, and I'm trying to get some help from you with that.

Mr. Wright: --The line is the grade that is going in the grade book with respect to this particular case.

If the grade is going in the grade book, what she is creating, she is maintaining.

If... if that... if maintain does not mean that she is making the record or creating the record, if we subscribe to their view that maintain means the central custodian, then the central custodian doesn't have any record either until it's actually in their hands.

And then we can disclose, we can access, we... everything.

Mr. Richardson: So what... so what if you could?

Suppose you were to say that.

Suppose you were to say before it becomes part of the permanent records of the school, you can disclose it to other people.

You can.

That's right.

The teacher can tell other students.

The teacher can tell the parents.

The teacher can have a discussion about it.

They can do a lot of those things if the teacher feels that's good educationally and the school approves.

What would be so terrible about that in terms of this statute?

Mr. Wright: It would be terrible.

It would be disastrous.

Students, parents would not have the right, that privacy.

That interest in keeping that information private would not be there.

Everybody would have access to that information.

In fact, that reads out of the statute (B)(i).

You wouldn't have confidentiality.

Education records, by its plain language in the statute, means information directly related to the student and maintained by the institution or somebody acting on behalf of the institution.

And clearly, by the plain language of the statute, that includes the teacher.

So, yes, the teacher grade books... the teacher grade books are education records, subject to the Family Educational Rights and Privacy Act, the privileges and the obligations that come with this particular statute.

Mr. Richardson: Mr. Wright, this goes all the way through, I take it, in your view that... take a college student.

The college student can say, oh, I don't want to participate.

I don't want anybody else to know what my grade is, and I'm not going to exchange papers with another person.

Mr. Wright: Precisely.

We don't engage in this practice at college because we would have mutiny at all colleges.

They have the capacity as adults, I'm not doing this.

I'm out of this class.

I don't want people knowing what my--

Mr. Richardson: I understand it's a--

--You're out of the college.

I mean, that--

[Laughter]

It's a technique that teachers do use, to have students prepare and present each other's papers, that that's a technique that's quite common in colleges and professional schools.

Mr. Wright: --You're referring to the... the teacher assistant helping them grade?

Mr. Richardson: No, no.

The students critique each other's papers.

Mr. Wright: Okay.

Student peer critiquing?

That is not prohibited by FERPA.

The teacher is not collecting that information.

The students are making the evaluation or assessment of each other for their sole purpose, not for the purpose of the teacher recording and making--

Mr. Richardson: The teacher writes down... the teacher writes down in the book the comments that the students made and she takes that into account in the final grade in the course.

Mr. Wright: --Outside of the facts of this case, that may be a violation if, in fact, she's making a record and that was the intent of the teacher to make a record.

Mr. Richardson: A... a good alternate name for this statute would have been the Anti... the Prevention of Mutiny Among Students Act?

[Laughter]

Suppose... suppose that a school district received $100 a year in Federal funds, and this act were applied in the way you said, would that to you raise any serious concerns of federalism?

Mr. Wright: I think the funds need to be available under an applicable program, and I think the lower cases have... have deemed that certain programs are applicable and certain others are not.

Federal funding through a State agency would be an applicable program.

Those facts were never raised in this particular case, never defended by petitioners as to whether or not there was any applicable Federal funding involved in this particular case.

The solution to the problem with respect to this issue that is before the Court, provide the parent the right to consent... in fact, that's what they're doing in many schools or they're just, like the Tenth Circuit said, do it anonymously or don't do it at all.

Have the student grade their own paper.

Encourage the parent to come and... and be informed as to what is happening--

Mr. Richardson: To have the student grade their own paper might have some problems with it too.

[Laughter]

Mr. Wright: --I cross examined the principal with respect to that particular issue, and he said, well, we exchange papers because the students cheat.

I said, well, the neighbor grading the other neighbor's paper... they don't have an opportunity to cheat?

Oh, yes, you're right, Mr. Wright.

They do cheat.

So that doesn't preclude the students from cheating, does it?

No.

Well, no, they could cheat even during the exam because they could write the answers on their hand.

Mr. Richardson: Well, you need two cheaters for that to work, whereas if you grade your own paper, it only takes one.

Right?

[Laughter]

Mr. Wright: We believe that the plain language governs what is an educational record and it does not mean the permanent transcript.

If Congress had intended for education records to mean a permanent transcript, they could have easily placed language in there that said only the permanent or cumulative record of a child is an education record.

They didn't say that.

They even excepted out sole possession notes, which are notes of the teachers.

They excepted out directory information.

The Family Policy Compliance Office has consistently over the last 25 years held that the grade book is an education record.

A parent would like to access it.

Here's the... here's another consequence, that a parent doesn't have a right to access if it's merely the permanent education record of the grades.

The teacher could... could say, no, you can't see your child's grades.

A parent has to have that information available to her for the purpose of making some important decisions with respect to her child, and that's exactly what Ms. Falvo went to the school district and argued.

She argued that those are my children's grades.

Those are between me and the teacher.

I have a right to consent to their release, and I have a right to access.

Mr. Richardson: Well, but a moment ago, from what you said, I thought the school district was telling her that she couldn't see her children's grades.

That never happened, did it?

Mr. Wright: No, that never happened.

But that happened in a particular case that has been cited by the petitioners in the State of California where a mom with a special ed child was having a hearing and needed the information in the grade book, and they said, no, FERPA doesn't apply.

The grades in the grade book... she had no evidence available to her to make an informed decision with respect to whether or not her child belonged--

Mr. Richardson: But that... that wasn't what happened here, was it?

Mr. Wright: --That isn't what happened here, but that has happened, Your Honor.

Any further questions?

Seeing none, Your Honor, we submit.

Chief Justice Rehnquist: Thank you, Mr. Wright.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Troxel v. Granville - Oral Argument

Fri, 09 Jan 2009 14:50:16 +0000

Case:

Troxel v. Granville

Media File:

99-138_20000112-argument.mp3

Related Transcript:

1999_99_138_argument.xml

Transcript:

Argument of Mark D. Olson

Chief Justice Rehnquist: We'll hear argument now in Number 99-138, Jenifer Troxel v. Tommie Granville.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, may it please the Court:

We present two questions today, and the advance of theory for the resolution of the case before this Court.

The first question is, was the Washington State supreme court correct when it held that a visitation order to a person other than a parent may not be granted absent a showing of physical or mental harm to the child, and the other question is, should the Court at this time resolve all of the constitutional questions that could be raised by any other orders, other than the Troxel order before this Court?

The answer to those questions are, we believe, the court did not make the correct decision below requiring a greater standard by a specific showing of substantial harm to the child than is already required by the best-interests-of-the-child standard, and we also ask this Court to leave for another day the resolution of the constitutional questions that may be raised by other visitation orders not before the Court.

Justice O'Connor: Mr. Olson, it's not clear to me just what the Washington court included in the word harm.

Can harm be stress to the child because of the severance of a substantial relationship?

Is that harm?

I... it's not clear to me how we even define the term.

Mr. Olson: The term harm is fuzzy.

There... that is a problem.

Is it... and I agree, is it a little bit of harm?

Is it a great deal of harm?

Do we look for bruises if visitation isn't ordered, or...

Justice O'Connor: It surely must mean more than physical harm, but what other things fall within it, do you think?

Mr. Olson: Harm to the child.

It is difficult to put one's finger on what harm is.

Best-interest-of-the-child standard subsumes many factors that the court considers.

Justice Kennedy: Can you argue that best interest of the child like, not being... that the child is harmed if his best interests are not being served, so that it's just really the flip side?

Mr. Olson: Well, we believe that the rule of the Washington supreme court requires a greater harm, a more specific showing, although that term is fuzzy, as Justice O'Connor points out, but in the best-interests-of-the child standard, there is harm considered to the child whether visitation is ordered or not ordered.

Chief Justice Rehnquist: I always considered the supreme court of Washington agreed with what you just said.

I had thought that the State statute said best interests of the child, and the supreme court of Washington said that you can't get a third party visitation rights as against the parent unless you can show harm, which suggests that they thought the two might... were mutually exclusive.

Mr. Olson: That harm and the best interests...

Chief Justice Rehnquist: That... yes.

Mr. Olson: standard were exclusive?

Chief Justice Rehnquist: That the best interests standard would cover a much broader spectrum than the harm standard.

Mr. Olson: If I understand the question correctly, our concern is that the focus of the best interests of the harm standard would over-emphasize that and create a hurdle that would be greater, or higher, or more difficult to prove and would, particularly in the case that is before this Court, would effectively bar visitation for the Troxels...

Justice Ginsburg: But Mr. Olson, isn't that some...

Mr. Olson: when it's very slight.

Justice Ginsburg: Mr. Olson, isn't that something for the Washington supreme court to spell out case by case?

After all, it's not our job to say what, under a State law, harm means, because that definition can come over time, the way law generally develops, case by case.

Mr. Olson: And that is why the theory that we advance to the Court is that the magnitude of the intrusion be balanced against the constitutionally required justification, and in this case we believe that best interests of the child is sufficient for the order, because the intrusion in our case is slight.

It's just 25.5 hours a month with the grandparents, and we believe that it is a State issue.

Chief Justice Rehnquist: But you have to show, don't you, that at least this visitation order is constitutionally permissible?

The supreme court of Washington I guess struck down the entire statute, and the argument you make, which I think has some force to it, is that you don't lightly strike down an entire statute, and... but you do have, from your point of view to avoid that you have to show that there's at least some order that could be issued consistent with this statute which would not be unconstitutional, and... I think your problem, probably, is to what extent can a court intervene in the case of parents who are not harming the child to say that outsiders such as grandparents can have a court-ordered visitation right?

Mr. Olson: I'm not certain of the question to me, Mr. Chief Justice.

The State courts, as Justice Ginsburg asked, does set forth the best-interests-of-the-child standard that the trial court would then apply in any given case.

The intrusion in our case, in the Troxel matter, is very slight.

There's no constitutional infringement upon any religious belief, right to educate, or any other matter.

It is simply in the best interests of the child, as was stipulated at the trial court by the experts and by the mother.

Chief Justice Rehnquist: But you do have a line of cases not directly on point, but that cut the other way, I think.

That is, the parents, it's up to the parents to decide, you know, not just who has custody, how the kids are going to be brought up, who they're going to see.

Mr. Olson: Yes.

Chief Justice Rehnquist: Does this mean that next a great aunt can come in and say, well, you know, I want to take her to the movies every Friday?

Mr. Olson: Well, the line of cases held that any parental decision is not above government regulation, but a parental decision would be subject... I'm sorry.

State regulation would be subject to strict scrutiny of a parental decision in the area of religion or First Amendment, if I understand the question, but in this case it is not.

Justice Ginsburg: But also health and safety.

Isn't that... those cases say parents decide, but the State can regulate to spare the child from harm.

Mr. Olson: That is true.

Justice Scalia: And you say the State can regulate just whenever it's in the best interests of the child.

The parent says, no candy.

The State says, oh, that's unreasonable.

Kids ought to have some candy.

Mr. Olson: Well, the magnitude of the intrusion would be balanced against the...

Justice Scalia: Oh, it's very little intrusion.

Give the kid some candy once a week.

[Laughter]

Alternate Fridays, or whatever.

This is an enormous intrusion?

And you think the State can tell parents because that's in the interests of the child, according to the State, or according to one judge who sits as the agent of the State and likes candy?

Mr. Olson: Well, our...

[Laughter]

Our theory, Justice Scalia, is that all those other hypotheticals would be left for the State courts to work out as those instances arise, and...

Justice O'Connor: But do you really think that the State can have a statute as broad as this that says, any person at any time can march in and ask a court in the best interests of the child to order some kind of visitation?

I mean, this is a breathtakingly broad provision, is it not, and it's very expensive for parents to defend lawsuits if anybody can walk in at any time and file a court action.

Mr. Olson: Regarding the expense, Your Honor, there are two statutes in Washington that allow the court to award attorneys' fees on the basis of need and ability to pay, and that if there is any economic imbalance the court can address that.

Justice Breyer: Mr....

Justice Scalia: A need or an ability to pay, but I mean, let's assume these people lay out a lot of money but in fact, you know, they have it.

It's just money that would have gone to something else.

Mr. Olson: Well, Justice...

Justice Scalia: They're not impoverished.

It's just cost them $100,000 to defend this case.

Mr. Olson: Justice...

Justice Scalia: Is there any remedy for that?

Mr. Olson: Yes.

The attorneys' fees could be reimbursed if there was... if there was an imbalance, or intransigence.

There are a number of bases by which the court could address any complaints regarding...

Justice O'Connor: Well, let's get back to my question of the breadth of this statute.

Do you defend it, any person, any time?

Mr. Olson: I believe, Your Honor, that the best-interest-of-the-child standard is what controls, not the any person language.

Justice O'Connor: But wait a minute.

That means that some welfare caseworker can march into court and ask for some order.

Mr. Olson: Your Honor, of course that's not the record in this case, and...

Justice Souter: Oh, but Mr. Olson, unless you are prepared to accept something that broad, I don't understand what your position is in this Court, because as I understand it you are not here and you are not in the courts of Washington claiming a substantive due process right, exclusive of the statute, to have this visitation.

As I understand it, you are claiming a statutory right.

The courts of Washington have said that the statute is too broad, and they have declared the entire statute unconstitutional, and they have said, we're not going to narrow or sever, and I presume that's their business.

Therefore, it seems to me that, for you to get relief in this Court, we would have to hold that in every possible or reasonably possible application of that statute it was constitutional, because unless we hold that, Washington was perfectly proper in declaring the statute unconstitutional, and if you, representing grandparents, want to come into court and claim rights, you've either got to get a new statute, or you've got to claim a constitutional right of your own, which you're not doing.

Am I missing something in the posture of the case?

Mr. Olson: Well, the State court didn't strike down the statute because it was too broad.

What the State court did was, it struck down the statute because it said that there was a requirement of a substantial physical and mental harm to the child.

Justice Souter: Well, it mentioned that, but it also mentioned the breadth of the statute.

It said this statute, in effect, gives third party rights to the world.

That's number 1, and number 2, it does so on the basis of an improper standard.

Mr. Olson: I don't believe...

Justice Souter: And it seems to me that unless we are in a position to resurrect the statute, you really don't have a claim to make under the law of Washington, and you're not making an independent constitutional claim of your own.

Mr. Olson: There are three responses I have, Your Honor, and that is that the any person language admits that family law is complex, and the nature of families is so varied that it's impossible for us to...

Justice Souter: Well, it may be complex, but let me ask you this question.

Do you believe that any person walking in off the street, without any relationship by blood or marriage to the child, may, as against the parents' claim of the right to control the upbringing of their children, get a court order based simply on a best-interests-of-the-child standard?

Do you believe that anyone walking in off the street may do that, as against the parents' constitutional claim?

Mr. Olson: Your Honor, the cases that we have cited to the Court and in the appendix show that it is normally deceased parent... grandparents of deceased parents...

Justice Souter: That's not my question.

The supreme court of Washington read its statute as saying just what I... my question assumed.

Anybody can make a claim under the statute.

Do you believe that anyone, as against the parental claim of a constitutional right to control the upbringing of their children, is... may constitutionally get a... an order for visitation or some interference with parental rights solely on a best-interests-of-the-child standard?

Mr. Olson: The best-interests-of-the-child standard does restrict who may petition, and the any person language addresses those people who have relationships with the child or who has some meaningful reason...

Chief Justice Rehnquist: Mr. Olson...

Justice Souter: That's now what the supreme court of Washington said.

Chief Justice Rehnquist: Mr. Olson, I think I disagree with Justice Souter as to the standard you have to meet, but I think we're both focusing on the same kind of thing.

My understanding is that, unless you're talking about the area of the First Amendment, if a statute is to be stricken down on its face, as the supreme court of Washington did here, you must... the person supporting that must show that there are no possible applications of the statute that would be permissible.

So... but whether Justice Souter is right that you have to show that almost all applications would be permissible, or whether I'm right that you have to show just that an appli... I'm still not persuaded that you have shown even that the order in this case is... avoids constitutional difficulties.

You say that the intrusion is minimal, and there are no religious or discriminatory implications.

Is that the substance of the constitutional test that you seek?

Mr. Olson: The only claim by the mother was that it was her decision, and there were no other constitutional issues raised by her at trial or anywhere in the court.

Justice Scalia: Why isn't that enough of a constitutional issue, that it is her decision?

I...

Mr. Olson: Well, that would extend the line of cases in Yoder to give constitutional weight to any decision of a parent, in that they could go to school...

Justice Scalia: Such as whether the kind can eat candy or not.

Mr. Olson: Well...

Justice Scalia: I really thought that was the parents' call.

Mr. Olson: Whether the parents be able to go to school and dictate what ideas or people who are associated...

Justice Scalia: Yes, don't you think...

Mr. Olson: In public schools...

Justice Scalia: You don't think?

Mr. Olson: I do not believe so.

Justice Scalia: You don't think.

I see.

Justice Souter: Suppose...

Justice Scalia: Where do you get the notion that the best interests of the child is the standard somehow in the common law world?

We certainly use that where there's been a divorce or separation, and you have to decide between the two parents, but when it's not the parents involved, can you give me any cases where... it would be in the best interests of a lot of children to take them away from their parents and give them to somebody else, but the parents have rights in the children.

Mr. Olson: Well, two questions there.

The common law question is in our footnote, I believe it's 45, Roberts v. Ward from New Hampshire, and many other cases held that it was common law to grant that visitation right, and your other question was...

Justice Scalia: To grant visitation rights?

Mr. Olson: To a person other than a parent, to a grandparent.

There were common law cases cited...

Justice Scalia: No, but I... you're talking about best interests of the child as though that's the generally well-accepted common law rule for what courts can do with regard to children.

They can do whatever is in the best interests of the child.

I don't... I'm unaware that that's our general rule at all.

Where there's a dispute between the parents, that will be resolved in the best interests of the child, but where it's a dispute between the parents and someone else, you think common law courts just say, well, what's in the best interest of the child?

It seems to me they say, well, what do the parents want?

They don't want the kid to eat candy, the kid doesn't eat candy.

Mr. Olson: Well, the courts do look at many factors under the best-interest-of-the-child standard as well as the fact that in some cases the parents themselves are responsible for creating the relationships that now the child requires, and the child does, we assert, have some constitutional claim here, and the court should balance all the interests involved, not just the parents.

Justice Scalia: Why?

Justice Stevens: May I ask this question...

Justice Scalia: The child does not belong the court.

The child belongs to the parents.

Justice Stevens: Is that a question, or...

Mr. Olson: It's the welfare of the children that the State is interested in.

Justice Stevens: I don't mean to get into this argument between the two of you.

I don't know if there was a question or not.

[Laughter]

But I did have this question for you.

As I understand, one of the problems with this statute is anybody's standing, but is it not true that there are a lot of statutes out there that give grandparents standing, and relatives, and I'd just like to ask you, what is the standard that is applied in most of the statutes throughout the country?

Mr. Olson: In 48 States, the standard is best interests of the child and no substantial harm, physical or mental, is required to be shown.

Justice Stevens: So that if we were to invalidate this statute on the grounds suggested in the questioning, we'd probably invalidate 48 statutes.

Mr. Olson: 48 States, that's right.

Justice Souter: When you refer to the 48 statutes, were you referring to the 48 statutes that give rights to the whole world, or 48 statutes that give rights to grandparents?

Mr. Olson: There are approximately four statutes that include the provision, any person.

The other statutes do attempt to limit to siblings or step-parents or grandparents.

What our statute does is, it admits that we are unable to foresee how relationships may be generated between children and significant adults.

Justice Breyer: Tell me something about your case.

I don't want to hear about the law.

I want to know something about your case.

All right.

Now, suppose I think the Constitution doesn't permit people to wander in at random.

Even if it's good for a child to learn the accordion, an accordion player couldn't come in and say, I want to visit once a year, even if the interference is trivial, all right.

So I start with that, and I also think maybe you could make out a case that yours isn't that case.

You have something special going for you, so that if it's applied to you, maybe you could win.

Now, I don't want to hear about how minimal an interference it is.

It isn't much of an interference to play the accordion once a year, okay.

I want to hear what's special about your relationship in your case that could overcome some kind of special burden that might be imposed before somebody can come in off the street and start hauling mothers into court.

Is there anything in your situation that's special and, if so, what?

Mr. Olson: The special nature involved in our case is that the children's father, Brad Troxel, is deceased.

The children had a 2-year relationship with the grandparents, staying in the grandparents' home every other weekend, and there was a substantial relationship from the ages of 1 and 3 until the action was filed and the children were 3 and 5 years of age.

There is that relationship.

There is the requirement, we hope, that the memory of the children's father will be preserved in the... by the grandparents, and that the growth of the children will be enhanced by knowing the kinship in the family, where they come from, and that is a very, very significant interest for the State to have in terms of how our children develop and what occurs with regard to their growth.

In terms of the harm question, Justice O'Connor, when children are taken away, or where there's significant grief or loss, a lot of time that pain goes deep within.

It will not resurface until the children are older, and there is loss of adult relationships...

Justice O'Connor: Well, what you're saying is that the loss of a substantial relationship can constitute harm, in your view.

Now, we don't know whether the Washington State court would deem that as a possible kind of harm, I gather.

Mr. Olson: Well, they created a higher standard of harm that will be then applied to grandparent visitation cases, of which they are more numerous than these stranger cases, which have not been shown to exist, but the higher standard will be applied to cases where the intrusion is slight.

Justice O'Connor: Well, excuse me, I didn't find where the Washington court ever defined harm.

Would you show me where it did?

Mr. Olson: I do not believe it did.

Justice O'Connor: Okay.

Mr. Olson: I believe that the standard that they used is not defined.

Justice O'Connor: Well, so as I said, we don't know what the State of Washington will do in interpreting the concept of harm.

Mr. Olson: And that's why our theory is that we leave for another day the difficult cases that the Court is raising and resolve this case.

Justice Breyer: All right, but are you satisfied... that is, suppose we were to say from your point of view that of course you must show a substantial relationship in the past, plus harm.

Now, some harm and loss of a substantial relationship could count as harm.

If it were that, then what happens to your case?

Mr. Olson: You mean, if that were the standard to be...

Justice Breyer: We're setting a constitutional standard.

We're not running public relation... domestic relations law, so suppose the outside limit were, the State's free to do this if it shows harm to the child, that loss of a substantial relationship could count as harm.

Mr. Olson: That could be a standard.

We're not asking the Court to adopt that standard for resolution of this case, because the best-interests-of-the-child standard was sufficient under our theory to resolve this case.

Justice Breyer: If that were the constitutional standard, what would happen to your case?

Would you lose?

Mr. Olson: No.

I believe that there is a substantial relationship, and there would be evidence of harm.

However, the appellate court and the supreme court never got to that question because we never developed it, and at the trial court it was stipulated that it was in the best interests of the children to visit their grandparents.

The only question before the trial court was what was the duration of the harm.

Justice Ginsburg: Mr. Olson, may I ask you to go back to the 48 States that you claim... it wasn't my understanding that those States simply say best interest, period, and also it's not my reading of the Washington supreme court decision that they passed on the constitutionality of that other provision that does set standards, that doesn't have just some broad best interest, but doesn't set standards that can be applied by judges.

Mr. Olson: Well, most of the States state that the best interests of the child is the touchstone, and that other factors may be considered, and it is the best-interests-of-the-child standard including but not limited to the following factors.

In family law cases, because they're so complex, the facts and circumstances dictate the factors that we consider in a trial, and I do not believe...

Justice Ginsburg: But is there any State legislature that has said, just best interests without any guidance at all about what comprises...

Mr. Olson: Some States set forth factors as guidance.

Justice Ginsburg: How many are like Washington that don't... that say best interests, period, nothing else?

Mr. Olson: I would have to look closer at that.

Kentucky has an any person statute, as does Connecticut, and Washington and California.

As to whether or not there are any standards or factors set forth in those statutes, I'd have to look at that again.

Justice Souter: Mr. Olson, let's assume that this Court at least agreed with you to some extent and said yes, given the special relationship that grandparents may normally establish with their children, some heightened standard less than the harm that might be necessary for the State to move in would suffice to justify overcoming the parents' constitutional claim of their rights to bring up the children without interference.

Let's assume that we held that was the law.

Wouldn't you be faced with this, nonetheless.

The case would go back to the State of Washington, and the Washington supreme court would say, well, we certainly accept the U.S. Supreme Court's view of the limitations on the parental Federal constitutional rights.

We accept that, of course.

However, we don't have a statute here any more.

The statute is unconstitutional.

It's unconstitutional regardless of its application to grandparents.

It's unconstitutional because, as we have already explained, its great breadth and its low statutory standard with respect to other third parties, and therefore what we've got is a very interesting statement from the Supreme Court on what the law is.

But you have come into court, grandparents, with a statutory claim, and we have declared the statute unconstitutional because of its many unconstitutional applications regardless of its application to you.

Therefore, we can't give you any relief.

Would that happen if the case went back to Washington, or wouldn't it?

Mr. Olson: If I understand your question that would, I believe, be a facial attack on the statute that shows that it...

Justice Souter: Well, isn't the supreme court of Washington entitled to decide how broad an attack on its own statute it will allow?

Mr. Olson: It would need to apply the standard that no case exists under which the statute...

Justice Souter: Why does it have to apply that?

That's the standard that we apply, or it may be the standard that we apply...

[Laughter]

in Federal constitutional challenges to Federal statutes, but if Washington as a matter of State law wants to entertain broader challenges, and if Washington, as a matter of State law, says we don't have to narrow our statutes in order to try to save them, isn't that, or are not each of those decisions perfectly within the competence of the supreme court of Washington?

Mr. Olson: It may be, Your Honor.

We would argue again that...

Justice Souter: But if those two decisions are within the competence of the State of Washington, then we could send this case back with a ruling on grandparents and there still wouldn't be any Washington statute, and you'd still lose in Washington, wouldn't you?

Mr. Olson: Well, that may be.

Justice Souter: Yes.

Mr. Olson: I'd like to reserve the rest of my time.

Thank you.

Argument of Catherine W. Smith

Chief Justice Rehnquist: Very well, Mr. Olson.

Ms. Smith, I hope you will address yourself to the question that we've also addressed to Mr. Olson, whether the... what exactly was the visitation order in this case?

Was it one weekend a month?

Mr. Smith: Yes, Your Honor.

Chief Justice Rehnquist: Whether an order of one weekend a month on the facts of this case violates the Federal Constitution.

Mr. Smith: Yes, Mr. Chief Justice, and may it please the Court, I will do so immediately.

I believe that this visitation order in this case was unconstitutional.

The order provided for one weekend a month from 4:30 Saturday until 6:00 p.m. on Sunday.

It also provided for notification provisions regarding the girls' activities to the grandparents, for what amounted to a court-ordered birthday party on the grandparents' birthdays, and it also provided how the parties would address the children, or one of the children, in which there was a dispute.

The order violated...

Chief Justice Rehnquist: Did you say address, or dress?

Mr. Smith: Address.

Chief Justice Rehnquist: Address.

Mr. Smith: Address.

The...

Justice O'Connor: You mean the name, the use of the name?

Mr. Smith: Yes, that's true.

Justice Ginsburg: And a week in the summer, was it?

Mr. Smith: There was a week in the summer, also.

The order violated the mother's rights to make these decisions absent evidence that the children were being harmed, and Justice O'Connor, in response to your question about what constitutes harm, in fact the Washington courts have been working on these issues for many years.

They have addressed harm in other circumstances.

In the case In re Sumey, which is in the briefs, they talk about the fact that they protect the physical and mental health of children.

This Court has also talked about the fact that the State can only come in under circumstances in which the health and safety of children is being jeopardized.

Chief Justice Rehnquist: When you say this court, you mean the supreme court of Washington?

Mr. Smith: No.

I mean the Supreme...

Chief Justice Rehnquist: This Court.

Mr. Smith: This Supreme Court, in Yoder, and in Santosky both the majority opinion and Justice Rehnquist's opinion in dissent talk about the fact that the State will step in when harm to the child is being threatened.

That is, in fact, the proper standard under our Constitution.

Justice Breyer: Suppose the divorce...

Justice Stevens: Under that standard there would be no relief for a grandparent even if the visitation order was 20 minutes every 6 months.

Mr. Smith: That's correct, Your Honor.

That decision...

Justice O'Connor: Now, there are a number of statutes around the country in different States that specifically address the right of grandparents to seek visitation orders, are there not?

Mr. Smith: Yes, there are.

Justice O'Connor: How many States have that kind of legislation?

Mr. Smith: I believe it's 38, but I'm not exactly sure on the count.

Justice O'Connor: So apparently, in your view, all of those are unconstitutional?

Mr. Smith: No, Your Honor.

Justice O'Connor: Out.

Gone.

Mr. Smith: No.

Justice O'Connor: Why?

Mr. Smith: Because first of all there may be circumstances under which a grandparent visitation statute could be enacted, and in many of those States...

Justice O'Connor: Well, we have 38 of them.

Now, as I understand your view, most of those are unconstitutional.

Mr. Smith: No.

Justice O'Connor: If they speak in terms of the right of a grandparent to seek visitation based on best interest, in any event.

Mr. Smith: If they rely on a strict best interest standard, without creating a burden of proof and a presumption that the parent is, in fact, acting in a child's best interests, yes, I do believe those statutes unconstitutionally impair a parent's right to make decisions...

Justice Stevens: Yes, but what if...

Mr. Smith: about their child.

Justice Stevens: they acknowledge those presumptions but do not have a requirement of showing harm?

Mr. Smith: Excuse me, Your Honor.

I didn't hear the beginning of the question.

Justice Stevens: What if those statutes acknowledge all those presumptions and say there's a presumption that the parents are the final say on what goes on...

Mr. Smith: Uh-huh.

Justice Stevens: and the grandparent may not have visitation rights unless the grandparent can prove that absent visitation rights the child will be seriously harmed?

Mr. Smith: I believe that those statutes violate the constitutional rights of the parents.

Yes, I do.

Justice Breyer: Well, what do we do in... I mean, unhappy families are all different, and...

Mr. Smith: And so are happy ones... yes.

Justice Breyer: what happens where there are custody proceedings, there are very complex situations, where children... suppose you're already in court in a domestic relations case and there's some complex situation, has to do with a stepfather, cousins, no relationships... there are all... and sometimes domestic relations judges have to work out very, very detailed orders in highly complex situations, and do you want to say there, too, what we're doing is giving a constitutional veto to a natural mother, where she's already in court and it's one of these complex situations?

I mean...

Mr. Smith: Yes.

Justice Breyer: Yes?

Mr. Smith: Yes.

Justice Breyer: Well, what are we going to do to circumstances where the mother has problems, where they've been raised by foster families, where there are schooling problems, where there's a search for stable relationships, where the child's interest is what the judge is thinking of, and sometimes he has to work out something that's highly detailed.

Why should the mother in that kind of ongoing situation suddenly have a kind of veto?

Mr. Smith: Your Honor, in that circumstance I believe the court would be able to find harm under the circumstances that would allow the parent's decision to be overridden.

The point is that the court has to have a level at which they start making decisions, the State starts making these decisions instead of the parent, and the best-interest standard alone is insufficient.

It's particularly insufficient when it is characterized, as it was in this statute, and it was characterized by this Court, as simply the State saying what it thinks that the best interest of the child is, as opposed to the parent.

Justice Kennedy: Could you have answered Justice Breyer by saying that where custody is in issue, best interest then becomes the standard.

Mr. Smith: Well, I...

Justice Kennedy: But where visitation is an issue, it is not, or do you make that distinction?

Mr. Smith: Well, I do make the distinction, but perhaps in a slightly different way.

When custody is at issue between parents, for instance, there is a best-interest standard that should be applied between the parents, because you've got a neutral playing field there.

You have two people who have...

Justice O'Connor: Yes, but often these come up in contexts where it isn't between two parents.

There may be one parent who's impaired through drug abuse or something else, and you may have an aunt or a grandparent who's had the child all along, for years.

Now, what standard does the Constitution demand in a custody situation?

Mr. Smith: The right to assert the fundamental interest depends upon the relationship between the parent and the child, or the person who is acting in the parent relationship with the child.

This Court talked about the parameters of this in Moore, for instance, in which the grandmother was acting as the parent to the child.

It is the intimate family relationship between the parent and the child that creates not only the right but the obligation to make these decisions for children.

Justice Kennedy: And are you saying that all we need to decide here is that that right applies when custody is conceded?

Mr. Smith: Yes.

That's... that is what we're saying.

We have a perfect...

Justice Breyer: You're a domestic relations... are you... you know a lot about this area, I hope.

Mr. Smith: Yes.

Justice Breyer: Okay, good.

Mr. Smith: I hope so, too.

Justice Breyer: So are there... look, if we get out of the problem I raised in that way...

Mr. Smith: Uh-huh.

Justice Breyer: what is also lurking in the back of my mind is not this case.

I'm not thinking of this case.

Mr. Smith: Uh-huh.

Justice Breyer: I'm worried about words that will affect other cases.

Now, are there other kinds of proceedings where it's not exactly custody, but there's this kind of complexity that's worrying me, where the stability of the child... you know, and you can't say harm.

The judge is out there writing a rather detailed order, and he can't prove harm in respect to every word in that detailed order.

Are there other things we should be writing into this that this case isn't?

Mr. Smith: I am not aware of another circumstance in which this type of intrusion occurs, where you have a third party coming into court and asking for associational rights with the child, essentially.

Now, there may be circumstances under which people want to have children do other things, but I believe that the lower courts are perfectly capable of looking at the differences between deciding whether a parent is not acting in the best interests of the child which I believe, Your Honor, is sort of... I think it was Justice Kennedy who said, this is sort of the flip side of the harm analysis, and having a court independently substitute its decision of what's in the best interests of the child.

And the difference is this, and the reason it is so important in domestic relations that this distinction be made is that if you put the burden on someone to show harm, as that will be defined and as it has been defined in many cases in Washington... and most particularly I would ask the Court to look at the Littlefield case which was decided 2 years ago in Washington and talked about harm in a relocation and travel situation.

If you put the burden on an individual to look at the parents' decision and see whether it is within the range of acceptable decisions, that is a very different thing than telling a court, as the courts were told in these statutes, you decide what you think is in the best interests of the child, and it's different, and it's important for two different reasons.

The first is, when judges are making decisions, when the State is making decisions in a best-interest situation, it's very much different than the sorts of decisions that most judges make under most other circumstances, where they're deciding whether somebody committed a crime or breached a contract.

Chief Justice Rehnquist: When you get... range that broadly, Ms. Smith, I'm very much bothered by the fact that the supreme court of Washington here struck down on Federal constitutional grounds an entire statute, not simply saying it couldn't apply in this case or that case, and I think our constitutional rule for Federal purposes is that to do that you have to show that no conceivable circumstances could the statute be constitutionally applied, and I take it you're taking that position.

Mr. Smith: That's correct.

Chief Justice Rehnquist: But the fact that there are all sorts of cases where it wouldn't be constitutional I don't think helps you, unless you can show that there are no cases in which it would be constitutional.

Mr. Smith: This statute does not provide a constitutional rule of law for the determination of when a visitation order is to be entered.

Justice Scalia: You're saying, even though they might come up accidentally with a result that you could have decided properly under a proper standard...

Mr. Smith: Yes.

Justice Scalia: the standard here, which is simply the best interests of the child, is always wrong...

Mr. Smith: That's...

Justice Scalia: as applied in every case to which this statute applies.

Mr. Smith: That's correct.

Justice Souter: What about custody cases?

Mr. Smith: Well, in a custody case... in a custody case between a third party and a parent, this standard would not be used in Washington, and it could not be used, I do not believe.

Justice Stevens: Would it be used in a dispute between the two parents in a divorce situation?

Mr. Smith: Well, the... it would have been used in Washington between 1974 and 1987.

The Washington legislature...

Justice Stevens: In a divorce situation do you think it was constitutional?

Mr. Smith: Yes, because you've got two individuals who have been acting as a parent to the child, and they, between the two of those... I mean, you've got to have a tie-breaker at that point, if they're disputing, but you don't need to have a tie-breaker under these circumstances.

We've already got a tie-breaker, and it is the fact that the parent makes the decision unless it's putting the child at risk, which...

Justice Souter: Would the statute... may I interrupt you?

Would the statute apply in a case in which the child had been brought up by one single parent, let's say the mother, who at all times during the child's upbringing was living with her own mother and father, and a question then arose as between, let's say, her mother, who had always been with the child just as much as she had.

Would the statute apply in that case?

Mr. Smith: For custody or visitation?

This statute?

Justice Souter: Yes.

Mr. Smith: Well, if the parent was making a choice to live with the parent, with her parents...

Justice Souter: Right.

Mr. Smith: Yes.

I...

Justice Souter: And then the day comes that she moves out.

Mr. Smith: And then the day comes when she decides to move out.

Justice Souter: Yes.

Mr. Smith: Now, under a properly drafted statute I certainly think that there might be circumstances under which, if the individual was completely cut off...

Justice Souter: Excuse me, but before you get to that, would the... would this statute apply in that case?

I assumed it would, frankly?

Mr. Smith: It could.

Justice Souter: The mother, after 10 years living with the child with her own mother, the child's mother takes the child and moves out.

Mr. Smith: Uh-huh.

Justice Souter: Her own mother wants some visitation.

The statute would apply in that case, wouldn't it?

Mr. Smith: The statute would apply, but I don't think it could be constitutionally applied, because it doesn't provide a constitutional rule of law.

Justice Souter: But earlier I thought you said that the best-interest standard determined the appropriate circumstances for a best-interest standard, which you admit in some narrower range, turned not on the blood relationship but between, in effect, the functional relationship, whether or not there was the kind of intimate association which is normally associated with parents, and I would have thought that in my hypo there would have been that extended intimate association, and that therefore, in my hypo the best-interest standard, on your own reasoning, would be constitutional.

Mr. Smith: The court makes a... well, parents may live with other individuals.

That does not give a parent-child relationship to those individuals with whom they live.

There's still one...

Justice Souter: So that there is a blood component to this.

Mr. Smith: Well, I don't think there necessarily has to be.

I don't think the court has to...

Justice Souter: Well, what about my case, then, in which the grandmother has had just as intimate a relationship with the child as the child's own mother?

Mr. Smith: Your Honor, respectfully I would suggest that they didn't have just as intimate a relationship, because the decision...

Justice Souter: You don't like the hypo.

[Laughter]

Mr. Smith: No, it's not that I don't like the hypo.

It's just that I think that... I mean, I don't know exactly why these people were living together, but I presume it was because the parent made the choice to live with her parents.

Justice Souter: Right.

Mr. Smith: And that was the choice that she made for herself and her child.

Justice Souter: Yes, and she went to work every day, and she left the child with the grandmother.

Is that a sufficiently intimate relationship or not?

Mr. Smith: No, not... the parent is making the decision how the parent-child relationship is...

Justice Stevens: May I ask you...

Mr. Smith: and who the child is going to associate with.

Justice Stevens: May I ask you to comment on a problem that concerns me?

I'm just really interested in your answer.

Take Justice Souter's hypothetical and assume that... we see in domestic relations fights sometimes children are used by one spouse against the other as part of the bargaining and so forth, and supposing you have a situation in which the mother of the child gets into a dispute with the grandmother that's totally unrelated to the welfare of the child, but decides for arbitrary reasons to deny visitation rights because it will further her ability to pursue whatever the dispute is...

Mr. Smith: Uh-huh.

Justice Stevens: Arbitrary in the sense of best interests of the child, but yet using the child as a weapon in a dispute like that.

I take it your standard would say, total control in the mother?

Mr. Smith: Absent evidence of harm.

Absent some indication that the...

Justice Stevens: No evidence of harm, except the grandmother just won't get to see the child she's been living with for the last 20 years.

Mr. Smith: Under a properly...

Justice Stevens: Or 10 years.

She'd be too old.

Mr. Smith: 20 years, I think the child...

Justice Stevens: Yes.

Mr. Smith: might be making the decision.

[Laughter]

Justice Stevens: Yes.

10 years.

Leave it at 10 years.

But that is the consequence, that it's an absolute veto unless the other side can prove harm to the child?

Mr. Smith: Yes.

Justice Scalia: And you would apply that, I suppose, also to the case of the no-good black sheep husband who has abandoned his wife and child, and then the wife dies, and the husband suddenly reappears and decides what will happen to the child, I take it?

Mr. Smith: No, I would not.

Justice Scalia: Why not?

Mr. Smith: Because I think it's both the combination of... well, this is the reason I said I'm not sure the biological relationship is the truly relevant one.

It's the fact that the parent, by definition, has the right and the obligation to make day-to-day decisions for the child, and this is exactly the sort of day-to-day decision that parents rather than the State should be making, and you...

Justice Scalia: Well, but this is a parent.

I mean, this is the father.

There's no doubt that he was the biological father, and I suppose he would be entitled to custody if he...

Mr. Smith: I think we're defining parent differently.

I'm defining parent in a way that acknowledges the fact that a parent parents a child, that...

Justice Scalia: You're saying there's got to be blood and a history of intimate association in practice.

Mr. Smith: That's correct.

Justice Scalia: Does the statute require that?

Bear in mind that you're trying to sustain the burden of saying that this statute is unconstitutional in all its applications, but you've just said that it's certainly not unconstitutional in the application where the parent who is trying to determine the future behavior of the child is this no-good black sheep father who hasn't been with the child.

Now, there's at least one situation where you could apply the rule of this statute constitutionally, right?

Mr. Smith: Well, the fact that the... no.

I don't believe so, because the fact that the biological parent, who has not acted as a parent to the child... he wouldn't have any standing under this statute.

Justice Souter: You'd say the statute would be irrelevant in that case.

Mr. Smith: Yes.

Who's going to be... somebody's taking care of the child, presumably.

Justice Souter: You would say the statute was irrelevant, but I don't have any reason to believe that the supreme court of Washington would say it was irrelevant.

I mean, that's not... what... your concept of parent as having the two factors does not seem to be the concept of the statute.

It certainly isn't defined that way.

Mr. Smith: Well, the court had before it, and I certainly don't think that they anticipated a situation... they had before it three fit parents, in which there was no question, and there's certainly no question in this case that those parents were fully capable of making decisions for the children, and that there was... there was nothing wrong with those decisions, except somebody who had the filing fee amount disagreed with them.

Justice O'Connor: Is there a statute left in Washington now to cover visitation...

Mr. Smith: Yes.

Justice O'Connor: and if so, what is it?

Mr. Smith: The statute that is now left in fact requires that there be a court action pending.

Justice O'Connor: Do we have that in the...

Mr. Smith: It is reproduced in the appendix to the brief of the petitioner.

It was not... and it would not have provided relief to the grandparents in this case, or the petitioner in this case or in any of the cases that were before the State supreme court because there was not a custody action pending.

It does...

Justice Ginsburg: Is that the normal, that a visitation application can attend some other proceedings, divorce, separation, custody, but can't be made at any time?

Mr. Smith: Well, I don't know if it's normal.

It's certainly the case in many jurisdictions that that is a triggering mechanism, and certainly the intrusion under circumstances like that is far less than it is in a situation like this, where any person at any time can seek visitation, because the parties are already in court at that point.

Somebody's going to be making a decision concerning this.

And when the Washington legislature passed that statute in 1996 they required not only that there be a custody action pending, but that the individual who is seeking visitation show a substantial relationship to the child.

They presumed that grandparents have such a relationship, but again, they required that there be a custody action pending, and it's the intrusion of coming into court that is, in fact, one of the things about this statute that is so pernicious.

You should not be placed in the situation that my client was placed in of coming in and defending a perfectly reasonable decision, because this started out as a dispute about whether these grandparents, who were never denied access, were going to see these children once a month or every other weekend, which is what they were seeking.

They wanted every other weekend overnight visitation with two girls who at the time were less than 2 and 4, and no one should be brought into court for that sort of dispute, and that's what the Washington supreme court recognized in finding that the parents in the cases before it had a statute unconstitutionally applied to them, because there was no standard for either allowing individuals to come into court, which individuals, when they could come into court, or what had to be proven in order for a visitation order, or any of the other little micromanagement that goes on in these sorts of orders, to be entered.

Justice Ginsburg: And there is an assumption that the Washington supreme court was talking about a fit parent who has custody?

Mr. Smith: That's correct, and that's what they had before them, and in fact I think it's quite clear that they thought they were applying this statute to these fact situations.

Justice Scalia: Can I come back to my no-good black sheep runaway...

Mr. Smith: Oh, sure.

Justice Scalia: runaway husband...

[Laughter]

because I'm worried about that being the case...

Mr. Smith: Yes.

Justice Scalia: where this statute might... maybe the answer to that case is that that husband would first have to seek custody of the children, and custody would be denied.

Mr. Smith: That... he would be denied custody.

Justice Scalia: Okay.

Mr. Smith: I believe.

Justice Scalia: But if he were granted custody, then you would say it would play out the same way your case does?

Mr. Smith: Yes.

Justice Scalia: Okay.

Mr. Smith: Because we have a situation... I mean, the Constitution, as it's been characterized by this Court, or interpreted by this Court, and as a matter of the way we've operated our society, we have parents make decisions about who children are going to visit with, what candy they're going to eat, how much television they're going to eat, and we don't take that decision away from them.

All those little decisions, the big decisions, all the things that raise children...

Justice O'Connor: All right, but now your own State of Washington has adopted a new statute to fill the gap, hasn't it?

Mr. Smith: Yes.

Justice O'Connor: And again, it bases it on the best-interests-of-the-child standard.

Mr. Smith: With a number of factors.

Justice O'Connor: Yes, but under the rule that you would have us adopt, that also is invalid.

Mr. Smith: I believe that the court... and I would encourage them to, and I may get the opportunity to, to have them apply a harm standard.

They did that in the Littlefield case with regard to relocation.

Chief Justice Rehnquist: They could easily have done it here, but they simply refused to.

Mr. Smith: Well, I think what they recognized is this, that they had a statute that allowed any person at any time to seek visitation, and at least with regard to that broad a statute, they believed that there had to be a showing of harm, and I think that it's important to recognize...

Justice O'Connor: But under your view, if we were to adopt it, this follow-up statute is also invalid...

Mr. Smith: I believe...

Justice O'Connor: on its literal language of the best-interest standard.

Mr. Smith: It would have to be interpreted by the court.

I believe that...

Justice O'Connor: To mean something else?

Mr. Smith: No.

I think that the court could characterize the best-interest standard as providing an appropriate protection for the parents' right, because... if it required a showing that the parents' decision under those circumstances was not in the best interest of the child, that would be the equivalent of a showing of harm.

Chief Justice Rehnquist: But if the supreme court of Washington wouldn't construe this statute to require harm, is there any reason to think they're going to construe the follow-up?

Mr. Smith: Well, the statute has factors involved in it.

It also requires that there already be the court intrusion.

I don't know, and they haven't had that case before them.

They had to consider what they were going to do in situations like this, where a third party was seeking visitation absent such an intrusion already occurring.

Justice Stevens: May I ask, in this case you appealed to the appellate court and the State court.

Did you argue, in addition to arguing the statute was unconstitutional, that the trial judge had engaged in too much micromanaging?

Mr. Smith: Yes.

Justice Stevens: And of course, if they'd accepted that argument, we wouldn't be here.

Mr. Smith: We wouldn't be here.

If they'd accepted my argument that they should apply what they'd been doing for 20 years with the State, there had to be another action pending.

Justice Kennedy: Can you tell me, in a case something like this, where the initial position of each side is rejected, then the court makes some Solomon-like midway compromise, in a case like that, would the parents... assume younger parents faced with well-financed grandparents... ever be entitled to 100 percent of their attorneys' fees, or do you have to be a prevailing party?

How does the attorneys' fees...

Mr. Smith: You know, I can tell... I can only tell you what happens in a situ... in most of these situations, and that is, in the course of the Solomonic division, the courts usually don't award fees.

I can certainly represent that to you, and I can also tell you that in the two other cases that were pending before the State supreme court, that in the other case in which I represented the parent, that the court below... because these decisions are made by the trial courts, who have just had themselves reversed... did not award fees to a client who was in much worse financial situation than the parents... than the grandparents.

Justice Scalia: As I understand... I understand the dichotomy you draw between a harm-to-the-child standard and a best-interests-of-the-child standard.

I'm not so sure about your fallback standard, which is, you think it would be okay if you applied not a best-interests-of-the-child standard, but a standard to the effect that the parent who has custody is not acting in the best interests of the child.

You don't think that that's much different from the judge deciding what is in the best interests of the child?

Mr. Smith: I absolutely do, and I think Justice Kennedy pointed out that it's really the flip side of that.

If you... and this goes back to something I was talking about earlier, which is the second reason the best interest standard doesn't work, and that is that when you tell the State or a court to make a determination of whether a parent is not acting in a child's best interest, the focus of the decision is much different than asking a court...

Justice Scalia: Oh, I see.

Mr. Smith: what is in a child's best interest.

Justice Scalia: I see.

You don't mean that what the parent has decided to do is not in the child's best interest.

You're applying a subjective standard?

Mr. Smith: No.

Justice Scalia: The court has to decide whether the parent subjectively is trying to do what is best for the child?

Mr. Smith: It's... the court has to look at whether the consequences of the parent's decision will be to harm the child.

In that circumstance, a parent would not be acting in a child's best interest.

It's the difference between asking in this case...

Justice Scalia: Well, no, no.

I mean, you could not harm the child, but still not be acting in the child's best interests.

Mr. Smith: Well, best interests I think has to be defined in a way that you recognize that there are all kinds of decisions that could be made about a child, and we may disagree about what is in a... I might think that it's in the best interests of my child to go out for football rather than to play the violin.

The choice of the outcome, as long as it's not harmful to the child, is the parents, and if you're making decisions that go towards that outcome, then somebody else shouldn't substitute their decision.

If I think instead that it would be in the best interests of my child to be in child pornography, then somebody else can step in and say, that is not a decision that can be in the child's best interest.

Justice Scalia: It's no different from harm, the way you're describing...

Mr. Smith: It is.

You're absolutely right, I don't think it's any different from harm, and the reason that it isn't is because it takes the focus away from the State making the decision to whether the parent's decision is within the range of acceptable decisions.

Justice O'Connor: May I ask you one last question here about what you urged the Washington court to do?

Mr. Smith: Yes.

Justice O'Connor: Did you ask the court to find the statute then being used constitutionally overbroad, applying the Federal standard for overbreadth...

Mr. Smith: Well...

Justice O'Connor: constitutional overbreadth?

Mr. Smith: The... this argument that's being made now that we... there's a difference between...

Justice O'Connor: Well, just answer my question.

Mr. Smith: I'm sorry.

No.

What I asked the court to do... first of all, I made an argument that they should rely on our State constitution, which they didn't address.

Then I asked the court to construe the statute narrowly so that it could be properly applied, and that under the facts of these cases these people could not seek the...

Justice O'Connor: Do you think, then, that the Washington supreme court applied a Federal constitutional overbreadth standard in striking the entire statute?

Mr. Smith: The court thought that the statute violated the Federal Constitution.

Chief Justice Rehnquist: Thank you, Ms. Smith.

Mr. Smith: Thank you.

Rebuttal of Mark D. Olson

Chief Justice Rehnquist: Mr. Olson, you have 2 minutes remaining.

Mr. Olson: Thank you, Mr. Chief Justice.

Justice Breyer, what I think is most important about the special question that you asked is that the father in this case, Brad Troxel, wanted the grandchildren to know their grandparents, and the State can continue to respect his views before he died, and Justice Souter...

Justice Ginsburg: But, of course, these children have a father now.

The mother's husband adopted...

Mr. Olson: It's a step-parent adoption, and 28 States permit visitation in step-parents adoption cases.

Justice Souter, your question, we don't read the Washington opinion to establish a different standard for facial invalidity, and no party argued for a different standard in the State court, and Mr. Chief Justice...

Justice Souter: They didn't say anything one way or the other about the standard they were applying.

Mr. Olson: It was not discussed.

And Mr. Chief Justice, the best-interests-of-the-child standard in the amended statute in Washington, 26.09.240, still is the basic best-interest standard that exists in 48 States.

It just says, include and consider these factors, but you're not limited to it, because the complex nature of State dissolution and family law cases dictates the factors.

We don't want to create an Internal Revenue Code to try to figure out how to ferret out these problems.

On the micromanagement, it's important to know that, regarding the use of the name, Isabel, it was the mother's request that the grandparents not call her Rose, to which the grandparents conceded.

That was put in the order.

All of the micromanagement issues were requested by the parents.

The grandparents conceded that, and that was to make the parents feel better so that that would be better for the children.

The...

Justice Ginsburg: I just want to go back to earlier, raising of the... are you suggesting that the grandparents accede to the rights that the dead father would have had, even though we're dealing with an adoptive parent, not a step-parent?

Mr. Olson: The problem with kinship, I believe, is that we can't ignore that the children had another parent, and that we want to respect the rights of that parent.

Chief Justice Rehnquist: Thank you, Mr. Olson.

Mr. Olson: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Chandler v. Miller - Oral Argument

Fri, 09 Jan 2009 14:50:09 +0000

Case:

Chandler v. Miller

Media File:

96-126_19970114-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Walker L. Chandler

Chief Justice Rehnquist: We'll hear argument first this morning in Number 96-126, Walker Chandler v. Zell D. Miller, Governor of Georgia.

Mr. Chandler.

Mr. Chandler: Mr. Chief Justice, and may it please the Court:

In 1990 the State of Georgia adopted a law requiring drug testing of all members of the State government, State employees.

Almost as an afterthought, it adopted a law requiring drug testing as a condition of employment or candidacy for candidates for public office.

The first of those laws was struck down in the lower courts.

This law was brought forward before this Court by me and my co-plaintiff, who ran for office in 1994.

Unknown Speaker: Mr. Chandler--

Mr. Chandler: Yes.

Unknown Speaker: --you say that the petitioners ran for office in '94, and in the petition you brought here there's no assertion that any of the petitioners plan to run again in the future, is there?

Mr. Chandler: Not in the... as I recall, not in the actual pleadings in the lower court.

However--

Unknown Speaker: No.

So how would we have jurisdiction?

Mr. Chandler: --Your Honor, I believe this case would not be moot, because it would be capable of repetition and yet evading--

Unknown Speaker: Well, how would it be if none of the petitioners plan to run again?

Mr. Chandler: --Your Honor, I plan to run again.

Unknown Speaker: But that was not stated--

Mr. Chandler: That was not stated below.

Also, Justice O'Connor, I... my candidacy and the candidacy of all Libertarian Party members is premised on the concepts of limited government and freedom from unconstitutional searches and seizures among all the other liberties reserved to the people by the Founding Fathers, and in that respect I would think that OCGA 21-2-140 is violative of the interests of all candidates, whether or not--

Unknown Speaker: --Well, that's a merits argument, certainly, but normally we would look to see if there's some situation in a case like this of being capable of repetition and avoiding any review, and normally we would look to see some avowal that yes, indeed, these petitioners or at least one of them intends to run again.

Mr. Chandler: --Yes, I understand that.

Unknown Speaker: And you didn't seek to bring this on behalf of a class of candidates.

Mr. Chandler: No, sir, Your Honor, I did not.

Unknown Speaker: Mr. Chandler--

Mr. Chandler: Yes.

Unknown Speaker: --I'm wondering why, if you want to raise this issue, you don't have to refuse to take the drug test, rather than go ahead and take it and get on the ballot and then challenge it later.

Mr. Chandler: Your Honor, we filed this action prior to submitting to the test, prior to qualification by having this little piece of paper that certified us as being drug-free.

We were the nominees of our party.

We had an obligation to take forward the message of our party, the other messages of our party in the electoral process, so we essentially had no choice but to submit... unwillingly, perhaps, but to submit to this State-ordered search.

Unknown Speaker: When did you file the suit, before the election or after the election?

Mr. Chandler: Before the election, Your Honor, in May of--

Unknown Speaker: So at that time there's no doubt that the case was not moot.

Mr. Chandler: --Yes, Your Honor.

Unknown Speaker: At that time it was very much alive.

Mr. Chandler: Yes, Your Honor.

Unknown Speaker: So the complaint is that you... what, that you didn't amend your complaint in order to assert repetition after the election?

Have we ever required that, amending a complaint in a suit that originally was not moot in order to aver that mootness has not occurred?

Mr. Chandler: I don't know, Justice Scalia.

Unknown Speaker: I don't recall we've ever required that.

Anyway, as an officer of the court, you represent to us that you intend to run again, that this issue will arise again if the Georgia law stands?

Mr. Chandler: Yes, sir.

We search in vain the cases that this Court has handed down which deal with suspicionless searches to find where any blanket search of this nature, this magnitude, and lacking any showing of any compelling State interest, has been granted by this Court.

Unknown Speaker: Suppose that a State agency said, in the interests of all of our employees, everyone once a year must take a physical exam.

We don't want to know the results.

All we want you to do is to say that you've gone to a doctor, any doctor you want, for a physical examination.

Is that a search?

Mr. Chandler: Yes, Your Honor, I would think that would be a search.

Unknown Speaker: When does a search arise, when you go into the doctor's office?

Mr. Chandler: I would think so, Your Honor.

Unknown Speaker: Even though the results are disclosed only to you?

Mr. Chandler: I would think that it would be a search, because if the result of that search is that you can no longer serve in that agency, then--

Unknown Speaker: No, no.

No, the agency says, we don't care what the medical exam discloses.

We just, in the interests of our employees we want you to be examined once a year.

Mr. Chandler: --Well, I would think, Your Honor, that's... with all due respect, that's not before the Court, and... but the--

Unknown Speaker: Well, there are a lot of things that are not before the Court that are going to be before the Court based on this opinion, and so we have to write an opinion that covers more than your particular case because we're interested in the general principle.

Mr. Chandler: --Yes, Your Honor.

I--

Unknown Speaker: So I'm asking why this is a search.

Mr. Chandler: --I would think that it would be a search if, as a result of that search, a person could lose employment.

Unknown Speaker: That's not my hypothetical.

All you have to do is go to the doctor and just certify that you've had a physical exam once a year at a doctor of your choice.

The agency says we want to do this in the interests of our employees, and that may well... we can play with the hypothetical.

Mr. Chandler: Yes, sir.

Unknown Speaker: The agency pays for it, or whatever.

Why is that a search?

Mr. Chandler: I would think it would be a search under the principles of... that were announced in Schermberger, which drew a distinction between bodily searches--

Unknown Speaker: That is to say, Schmerber?

Mr. Chandler: --Yes, sir.

Unknown Speaker: Well, there the... involuntarily a needle was inserted in the... with the patient by a doctor who was not of his choice at a time that was not of his choice.

He had... he was there, on the gurney, in custody.

But that's quite different, it seems to me, from just saying go to a doctor once a year.

Mr. Chandler: It may well be, Your Honor.

Unknown Speaker: It may well be?

You think... I assume this physical exam requires a strip, right?

Mr. Chandler: Yes, sir.

Unknown Speaker: And you're saying that that's not a search, requiring you to go to somebody else and strip down and have that person examine your body?

Mr. Chandler: I think it's--

Unknown Speaker: What possibly could be a search if that's not a search?

Mr. Chandler: --Yes, Your Honor.

Unknown Speaker: I mean, you might want to argue about whether it's an unreasonable search, but you don't have any doubt it's a search, do you?

Mr. Chandler: No, sir, Your Honor.

Unknown Speaker: Mr. Chandler, would you have any problem if what the State did instead of requiring a drug test within 30 days of filing your nominating petition is require every candidate for the State office to file an affidavit certifying that the candidate is not now and has not in the past used or ingested illegal narcotic drugs?

Mr. Chandler: I would object to that, Your Honor, because that would--

Unknown Speaker: There's no search.

Mr. Chandler: --There is no search, but I--

Unknown Speaker: It certainly wouldn't... you wouldn't be here on the basis that you are here today.

Mr. Chandler: --That would be true.

Unknown Speaker: And a State has wide latitude, does it not, to define qualifications for State office?

Mr. Chandler: Yes, so long as those... so long as they do not violate people's constitutional protections.

Unknown Speaker: And what constitutional protection would be violated by requiring such an affidavit, that to be a candidate for State office you certify that you're not a drug abuser?

Mr. Chandler: Or never have been in your hypothetical, Your Honor.

You asked if I would object, and I would object not on a constitutional grounds--

Unknown Speaker: I'm asking on what constitutional basis.

Mr. Chandler: --I'm sorry, Your Honor, I fail to know of a constitutional basis that that might fit within that hypothetical.

Unknown Speaker: You just wouldn't like it.

Mr. Chandler: Yes, Your Honor.

I think that it might have some implication for free... free speech implications under the First Amendment, Your Honor, but--

Unknown Speaker: Well, if you had to take an oath that you have never been disloyal to the Government of the United States, of a State, or you've never been a member of, say, the Socialist Party, then you might have an objection under a different amendment than the one you're claiming, but you are claiming the Fourth Amendment, and you are doing it in relation to a bodily intrusion.

The Fourth Amendment puts on the same line as the security of one's person the security of one's papers.

Would you then question the requirement that if you run for office you must do a complete financial disclosure which will involve disclosing papers?

Mr. Chandler: --I think that there the Court has drawn distinctions in the past between bodily searches and financial disclosure.

I did not object in this case to financial disclosure.

Unknown Speaker: But the Fourth Amendment does say persons, houses, papers, so why would you say that it's all right to demand papers but not have anything to do with the person?

Mr. Chandler: Because I think there is a strong, compelling privacy interest in the person that goes far beyond the compelling... any compelling interest--

Unknown Speaker: Where do you get that from in the Constitution?

Mr. Chandler: --Justice Ginsburg, I do not know.

Unknown Speaker: Well, isn't--

--And is it the personal interest in not having to strip and have needles inserted, or is it the personal interest in not disclosing the results, because if it's the latter, then your case is perhaps more difficult.

Mr. Chandler: I think it's the former, Your Honor.

It's the actual giving up of bodily fluids, the insertion of--

Unknown Speaker: So you think most people would think that that's more of an invasion of privacy, just going to the doctor once a year, than having to disclose all of your financial records, all of your holding, all of your poverty or all of your wealth, as the case may be?

Mr. Chandler: --There is a big distinction in this case, Your Honor, and that is that if I disclose my wealth I cannot be kept off the ballot.

Unknown Speaker: Mr. Chandler, every invasion of privacy is not a search, is it?

Are you willing to equate every invasion of privacy with a search?

I mean, would you consider it a search if, instead of having someone examine you physically to decide whether you have cocaine in your body, you are required to disclose whether you have cocaine in your body?

I mean, that may be an invasion of privacy, but is it a search?

Mr. Chandler: Yes sir, I would deem it a search.

Unknown Speaker: You think it's a search?

Mr. Chandler: Yes, Your Honor.

Unknown Speaker: So when I ask you, you know, are you a drug addict, I'm searching you?

Words have no meaning if we're going to talk like that.

Why--

--You just told me it wasn't, so which answer are you giving?

You answered to me that no, it wouldn't be a Fourth Amendment search, but I'd object, and now you tell Justice Scalia, yes, it's a search.

Now, which answer do you want to abide by here.

Mr. Chandler: I'm sorry, Justice O'Connor, I'm not exactly sure of the contradiction that I've voiced here.

Unknown Speaker: Mr. Chandler, going back to Justice Ginsburg's question, assuming that you had actually to disclose papers, produce papers as distinct simply from producing information, so that there really were... in the same sense that we're talking with here, there really were a search involved, I take it that your answer would... I take it that your answer to the question would not necessarily be the same as your position here, because the governmental interests involved are different.

You might or might not think the Government had a sufficient interest in requiring that kind of production from its political candidates, but at least the Government's justification, what we would look to to decide whether it was reasonable or not would, I take it, in your view be different from the weight of the government's justification in this case.

Is that a fair way to characterize your position?

Mr. Chandler: Yes, Your Honor.

I think that would be a fair way to characterize it.

Unknown Speaker: And your real argument before us, I take it, doesn't go to the scope of what is or is not a search, but the scope of what is permissible on the grounds that the government does have a justification which is sufficiently weighty to make that search a reasonable one.

Is that it?

Mr. Chandler: Well, I certainly felt like it was a... that a financial search or a financial disclosure was a more reasonable government requirement than a drug test.

Unknown Speaker: All right, and what is your reason for saying that this particular search is not a reasonable one?

What's the nub of your attack on the government's justification?

Mr. Chandler: First, there is no real evidence of a real problem.

There... this... the searches which have been allowed by this Court have always been narrowly limited to certain areas... the front line in the war on drugs, drug interdiction, the use of firearms, the train accidents, things where a real problem or a real potentiality has been shown, and not mere hypotheticals.

And so the essence of this case is that this is just yet another attempt at expansion of governmental power over people for a very symbolic purpose, which is put on the State of Georgia.

It's not a test that's designed to keep drug abusers out of office.

It's a blanket search, carried out for symbolic purposes to... in my opinion to show that the General Assembly of Georgia is against drugs.

Unknown Speaker: Mr. Chandler, at the outset of your argument you mentioned that there was a... the statute originally applied to all State employees, and that that was held invalid.

Was that by Georgia courts or a Federal court?

Mr. Chandler: Federal court, but that was a companion statute, not this statute.

Unknown Speaker: I understand, but who held it unconstitutional?

Mr. Chandler: The district court in Atlanta.

Unknown Speaker: A State district court, or a Federal district court?

Mr. Chandler: A Federal district court, Your Honor.

Unknown Speaker: Was that case appealed?

Mr. Chandler: I don't know, Your Honor.

Unknown Speaker: When was that?

Is it--

Mr. Chandler: That was in 1990.

Unknown Speaker: --1990.

Mr. Chandler: Yes, sir.

Unknown Speaker: Thank you.

Mr. Chandler: This... a very similar case was brought in the district court.

this district... Harmon v. Thornburgh was also decided in the district court level in 1990, where the Justice Department wished to test, have blanket tests of all Justice Department attorneys, and that was held by the court at that time, the district court, to be not within the parameters announced by this court in Skinner and Von Raab.

Certiorari was sought in that case by the Government and was denied.

I consider this case to be almost exactly in line with that particular case.

Unknown Speaker: Well, the statute here, Mr. Chandler, does single out certain high-ranking State offices, and I think... I would think you're in a position... you ran for what, lieutenant governor?

Mr. Chandler: Yes, Your Honor.

Unknown Speaker: You're in a position to challenge the requirement for lieutenant governor.

I don't know that you're in a position to challenge requirements for other offices which you didn't seek, and certainly, don't you think there is an argument on behalf of the State that the people have a right to have a lieutenant governor who is, free of drug use?

Mr. Chandler: First, Your Honor, the... my coplaintiff, Sharon Harris, ran for commissioner of agriculture.

Secondly, there was never any showing that drug abuse or drug use in high offices or any other offices in Georgia has been any kind of a problem.

Unknown Speaker: Well, Georgia, then you feel can't adopt a prophylactic rule that says we want to make sure it doesn't become a problem?

Mr. Chandler: No, sir, I do not think they can.

I think that a potential problem, a hypothetical, potential problem is not a real problem and is therefore a symbolic problem.

Unknown Speaker: What if the Georgia statute, instead of reading the way it does, had said everybody has to take this drug test but anybody can get on the ballot.

All you have to do is announce the results of your drug test.

Mr. Chandler: Your Honor, that might be more permissible in my opinion, because then it would at least leave it to the voters to decide whether they want to choose a person who submits to a test, who passes a test--

Unknown Speaker: Why--

Mr. Chandler: --or who refuses a test.

Unknown Speaker: --I thought you were complaining about the search.

Mr. Chandler: Yes.

Unknown Speaker: The search would be exactly the same in that situation, wouldn't it?

Mr. Chandler: Yes, Your Honor.

Unknown Speaker: So how would it be any better?

I mean, if your real objection is the search, your answer should be, you know, no, it's just as bad.

I think he's capable of answering himself.

Well, but he's not capable, perhaps, of perceiving whether what he's objecting to is the search, Chief Justice.

If... maybe you're not objecting to the search, then.

You have some other problem than the search?

Mr. Chandler: I certainly object to the search as a prerequisite to being... to ballot placement, Justice Scalia.

Unknown Speaker: Well, isn't there a search in this other case?

But you don't object to that.

Mr. Chandler: In which other case?

Unknown Speaker: In the case the Chief Justice put to you, where you had to undergo the same search, but you could run whether it came out positive or negative.

Mr. Chandler: Well, I'm just saying that there's... that that would not... I think it's for the people of Georgia to decide whether or not you can be on the ballot, Your Honor.

Unknown Speaker: I'm sorry, I just don't understand, given that your objection is to the search--

Mr. Chandler: Yes.

Unknown Speaker: --why you would not... if it is to the search.

Mr. Chandler: Yes.

Unknown Speaker: Maybe it's not.

I don't understand why you would not find the Chief Justice's hypothetical just as bad as the one that you confront.

You can't run unless you get searched.

Mr. Chandler: Well, obviously, Your Honor, I have objected to the search.

Unknown Speaker: Or take another example.

No testing before, but the moment you are elected to office, you must have a test and you must repeat it annually.

Would you object to that?

Then the voters make their choice without any requirement of a--

Mr. Chandler: I would object to that because, Justice Ginsburg, there's no showing that there is a problem.

Unknown Speaker: --Well then, how does that differ from in between the time that you're on the ballot and the time that you're elected?

What is the difference in my situation, in the question that I pose and the one that Justice Scalia posed?

Mr. Chandler: I believe this Court has held, at least since the Carroll case in 1925, that blanket searches are intolerable, and that that would just be a blanket search.

Unknown Speaker: And would that be the same if every employee was required to get a physical examination once a year?

Mr. Chandler: Yes, sir, I believe it would be.

It would be a blanket search required by government, and I think a blanket search of people to determine whether or not they're using drugs, or whether or not they have a terminal illness, or whether or not they have a genetic defect, or a blood-borne disease... we have to look at--

Unknown Speaker: And that's because you object to the intrusion of going into the doctor's office, not the disclosure of the result?

Mr. Chandler: --Insofar as that intrusion is forced upon me by the State, yes, Your Honor.

Unknown Speaker: Mr. Chandler, I guess the test under the Fourth Amendment is whether the search is reasonable.

Now, does it enter into the balance of whether it's reasonable at all if it were shown that the virtually universal experience of private employers is to require an annual physical of employees, or to require a periodic drug testing?

Does that affect the balance when we look at a State-ordered search or not?

Does it affect what's reasonable, the general practice in the private community?

Mr. Chandler: I do not think so, Justice O'Connor, because there's a difference between the contractual relationship between employee and an employer and the political relationship between the government and candidates, and people who wish to be a part of that government.

That would be my answer to that question, Your Honor, but it may not address the point that you're concerned with.

Unknown Speaker: You'd have no problem with the law saying... or maybe you do, but if a high official, say the Governor, uses drugs, he is immediately disqualified from office, illegal drugs?

Mr. Chandler: Your Honor, for one thing, that--

Unknown Speaker: Would you have a problem with that?

Mr. Chandler: --I would even have a problem with that, Your Honor.

Unknown Speaker: Why?

Mr. Chandler: For one thing, that presupposes that the person that's in the high office has broken the laws of the State of Georgia.

The person could have, for example, been in a jurisdiction or another country where such drug use was not even illegal.

Therefore, he would not have broken the laws under the State of Georgia.

It is a shifting majority decides what is legal and illegal.

We see tobacco, for example, approaching illegality in this country, or portions thereof.

That introduces the novel idea that a citizen of a State is subject to the jurisdiction of that State no matter where in the world he or she might go, and that is an element--

Unknown Speaker: You think drug use is irrelevant to the abilities and the qualifications of a public officeholder?

Mr. Chandler: --Your Honor, I would think that that would be a matter of a question of how long ago was it, the frequency of use--

Unknown Speaker: Let's just suppose, during his term of office.

Mr. Chandler: --During his term of office, Your Honor, again it might be a question of frequency.

It might be a question of which drugs are being talked about.

It might be... there might be any number of questions--

Unknown Speaker: If they're illegal drugs--

Mr. Chandler: --If--

Unknown Speaker: --would you distinguish between illegal drugs?

Mr. Chandler: --Your Honor, we would like always for our elected officials to be people who obey the law.

However, when the Founding Fathers set forth the Fourth Amendment's prohibitions against illegal searches, I think they realized that people would be doing things that were illegal, and the answer that they sought, the answer that they would not allow would be blanket, suspicionless searches.

Unknown Speaker: But Mr. Chandler, I think the issue that's been raised is at least so far not an issue of search, as such, but an issue of substantive qualification.

Do you think there is anything unconstitutional about a State law provision to the effect that an officeholder who commits a crime... let's make it easy, a crime in the State, under State law, forfeits his office?

Is that unconstitutional?

Mr. Chandler: I do not think that would be unconstitutional.

Unknown Speaker: Okay.

Mr. Chandler: One of the issues here is, are there adequate protections that the people and the governments have to answer these questions?

I think there are already adequate protections in normal law enforcement, in the electoral process itself when people can be weeded out.

Nothing prevents a... an opponent of a politician in an election process to hold out his piece of paper saying he's been tested and then challenge his opponent to be tested.

Nothing would prevent that sort of buffoonery, and there's also the adequate protection of a free press and public scrutiny.

People live their whole lives, and they should be judged, perhaps, by the things that they do and the things that they say, and not by the products of their bodies.

I would like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Chandler.

Ms. Guilday, we'll hear from you.

Argument of Patricia Guilday

Mr. Guilday: Mr. Chief Justice, and may it please the Court:

This Court has established in Skinner, Von Raab, and Acton the test which permits drug testing in various contexts.

The State of Georgia is not here today to challenge that test in any way or to ask for any extensions of that test.

What we are asking the Court to do is to take the balancing of that test and apply it in a Tenth Amendment context, in the elections context.

Unknown Speaker: Does Georgia think this case is moot?

Mr. Guilday: Georgia thinks that the injunctive relief that Mr. Chandler and the co-petitioner sought with respect to the 1994 election is certainly moot.

The complaint also included a demand for, and the district court also recognized that the complaint also included a demand for declaratory judgment as to the merits, the constitutional merit of that statute, so to that extent, no, we do not think the case is moot.

Unknown Speaker: Even in the absence of... that the petitioners would seek office in the future, and in the absence of a class action?

Mr. Guilday: Justice O'Connor, we would admit that that question is close.

We read closely this Court's opinion in Storer, Norman, Meyer v. Grant, and the Democratic Party v. Wisconsin, all of which were elections cases.

There were various factual contexts in those cases, and in many, or in some at least, the facts were similar, where the electior was over and there was no statement that the particular candidates intended to run for office in the future.

Nonetheless, this Court held that because it was an elections context and the issues were likely to come before the Court again, that... I'm not sure which way to read the Court, either.

It was not moot, and so we will hear it, or it is moot, but even though it is moot we are going to consider it because it is an elections context.

Unknown Speaker: I hope we didn't say that.

[Laughter]

I mean, if it is moot, how would we have Article III jurisdiction at all?

That's jurisdictional.

Mr. Guilday: I believe--

Unknown Speaker: How could we say, even if it's moot we have jurisdiction?

Mr. Guilday: --If it is not... if it is moot, the Court does not have jurisdiction.

Unknown Speaker: You said that's what we have said.

Mr. Guilday: To be truthful, my reading of those cases makes it unclear as to what the Court was saying in each particular case.

Unknown Speaker: Do you think it's a pleading question, Ms Guilday, that whether a case is moot or not depends on what has been pleaded, as opposed to what exists?

Suppose he pleaded that he would run again but you could demonstrate that he has no intention of running again, wouldn't the case be moot?

Mr. Guilday: Your question asked whether it was a pleading--

Unknown Speaker: I mean, it seems to me it's moot if he has no intention of running again.

If he intends to run again and you accept that he... do you deny that he intends to run again?

Mr. Guilday: --No, we do not.

Unknown Speaker: It seems to me the case is not moot.

There is such a case where the person said he was not going to run again and this Court did hold it moot.

I forgot the name of it.

But there are other temporal things, like residency to qualify to vote, or pregnancy, that inevitably are going to be over for that particular individual.

Mr. Guilday: That is correct, but in the elections context, whether this particular candidate decides to run again, certainly there will be other candidates who may make--

Unknown Speaker: But he didn't ask for a class action.

Mr. Guilday: --He did not.

Unknown Speaker: And he has represented in Court today that he does intend to run again.

Mr. Guilday: That's correct, Your Honor.

Unknown Speaker: So if it's a pleading defect, it's a curable one.

Mr. Guilday: Correct, and that was going to be my response to Justice Scalia's question.

If it is a pleading defect, the fact that Georgia comes in and proves that he's not going to run again, then it's no longer a pleading.

Then it's evidentiary.

So--

Unknown Speaker: So how does this work?

I mean, if a case is moot, and then the parties come to this Court and they tell us something, a fact, make a factual statement that would mean it wasn't moot, are we just supposed to say, all right, now we treat the amendment as... the complaint as if it were amended?

I mean, how does this work?

I mean, there might be a lot of moot cases that people could file statements and say, well, we would like here to say a few things we didn't say in the district court which will make them not moot.

Are we now supposed to treat all these cases as if they weren't?

I mean, how does it work?

Mr. Guilday: --It works, Your Honor, in fact that Mr. Chandler and the other petitioners pled in their complaint, or they requested in their complaint for declaratory relief as well as relief--

Unknown Speaker: I don't see why that matters if it isn't a class action, and if there's no claim that he is going to run again.

I mean, a lot of people would like declaratory relief on a lot of theoretical questions that they have, very interesting questions of law, but--

Mr. Guilday: --This Court--

Unknown Speaker: --how does this all work?

I don't think it's just enough to come in and say, I would like some declaratory relief here in the absence of a showing that you have some plaintiff to whom it makes a difference.

Mr. Guilday: --This Court has responded to that very argument in the series of cases that I've just cited, which are in the elections context.

They have not required to my reading of those cases any actual allegational proof that the particular candidate who is the plaintiff in that particular case--

Unknown Speaker: Isn't it a class action on behalf of other people who are clearly going to run?

Mr. Guilday: --I do not believe that all of those were class actions.

I may be wrong in that, but I do not believe--

Unknown Speaker: Ms. Guilday, as I understand it, when this complaint was filed he didn't have to assert that he intended to run again because the election had not yet occurred.

There was clearly no mootness when the complaint was filed.

Isn't that correct?

Mr. Guilday: --That is absolutely correct.

Unknown Speaker: So the only issue is whether he had some obligation after the election to amend the complaint.

Now, is there some obligation?

Did the State, after the election, move to dismiss on the basis of mootness?

Mr. Guilday: Because we believed that the--

Unknown Speaker: Did the State do that?

Mr. Guilday: --No, it did not.

Unknown Speaker: So why would he amend his complaint?

Did the court ask him to amend, to come forward to show that what was originally clearly not moot is now moot?

Did the court make any such request?

Mr. Guilday: The district court--

Unknown Speaker: I can't imagine why he would have amended his complaint, no one having raised this issue.

And Justice Scalia will correct me on this if I am mis-citing 1653, but it does say that defective allegations of jurisdiction may be amended in a trial or appellate court, so--

--Thank you for the law, Justice Ginsburg.

[Laughter]

Ms. Guilday, may I ask you whether there is any place in the record in this case where we might find evidence of some particular or special need in Georgia for a suspicionless general search program for candidates for office in Georgia?

Is there any place where, in this record, we might find that, oh, there have been a number of officeholders, State officeholders in Georgia who have turned out to have drug problems?

Mr. Guilday: --There is no such record evidence in this case, Your Honor.

Unknown Speaker: Was any offered by the State and rejected?

Mr. Guilday: No, Your Honor.

The reason there was not... and I'm not sure at what stage you're talking about.

At the time the legislature passed this statute, Georgia law has consistently held from the beginning that in Georgia the statute itself evidences the legislative history.

There is no recording of any committee hearings, of any floor debate, anything like that.

Unknown Speaker: Is there any indication anywhere in this record that Georgia has a particular problem here with State officeholders being drug abusers?

Mr. Guilday: No, there is no such evidence, Your Honor, and there is no... to be frank, there is no such problem as we sit here today.

Unknown Speaker: Has this Court, in dealing with suspicionless searches, looked to what special needs there might be that would be an indication that a suspicionless... a blanket, suspicionless search would be appropriate?

Isn't that what we've looked to?

Is there a special need for the government?

Mr. Guilday: I think the question as to whether there is a special--

Unknown Speaker: Have we looked to that, or not?

Von Raab or other cases on which you rely, has this Court looked at a special need by the government--

Mr. Guilday: --Absolutely.

Unknown Speaker: --for a suspicionless search program?

Mr. Guilday: Absolutely, the Court has looked at special need.

Unknown Speaker: Okay.

So what is the need Georgia asserts here that is special?

Mr. Guilday: The special need that Georgia asserts is that in Georgia the elected officials that are included in this statute are by constitution trustees and servants of the public.

They are, by that constitutional provision, held to a much higher standard than is the ordinary citizen.

They are, in fact, fiduciaries to the public.

Unknown Speaker: Could Georgia require, instead of a physical search, an affidavit of a proposed candidate that that candidate is not now and has not been in the past a drug abuser, or user of illegal drugs?

Mr. Guilday: That requirement would raise issues involving the Fifth Amendment.

Obviously, the opposite side of that is a compelled statement as to whether or not I use drugs.

Secondly, this statute does not ask the candidate to say that I use illegal drugs.

All it does is say the negative of that, that on this particular--

Unknown Speaker: And you think a State could not ask a candidate to make some affidavit or certification regarding illegal drug use?

Mr. Guilday: --I believe it could not.

Unknown Speaker: Even if the State offers criminal immunity for making that statement?

Mr. Guilday: That would then raise questions as to Federal law, would that State immunity affect any Federal drug enforcement--

Unknown Speaker: What is your reason for saying that the State could not require an affidavit that you had not used illegal drugs as a candidate?

Mr. Guilday: --I think the question would, one, put in... it would be more intrusive and be more violative of the First Amendment rights of the individual to say, I have or have not in my past used illegal drugs.

Unknown Speaker: What First Amendment right is violated there?

Mr. Guilday: The compelled... the State is compelling him to make a statement which he may or may not want to make.

Unknown Speaker: Well, what if the State were to require a candidate to file an affidavit saying that he had complied with the financial disclosure laws of the State, and--

Mr. Guilday: I think the State does require that.

Unknown Speaker: --And would that, too, be a violation of the First Amendment?

Mr. Guilday: It would not.

Unknown Speaker: Why is one different from the other?

Mr. Guilday: The difference is, this Court has upheld the validity of the financial disclosure laws in several cases.

Unknown Speaker: But we've never upheld the validity of drug laws?

Mr. Guilday: You've upheld the validity of drug laws.

You have not upheld the validity of a affidavit... you have not addressed the issue, to my knowledge, of an affidavit saying I have or have not used drugs.

Unknown Speaker: But why isn't the First Amendment issue, if there is one, the same in each case?

In each case perhaps a candidate is unwilling to make that statement, and yet nonetheless the State requires it of him before he goes on the ballot.

Mr. Guilday: The issue in the First Amendment is, how intrusive is that of the First Amendment right?

Unknown Speaker: So it's more intrusive to find out that a person has violated the drug laws than they've violated the financial disclosure laws?

Mr. Guilday: The Georgia statute does not require a citizen to state that he has violated the drug law.

Unknown Speaker: No, but this is a hypothetical.

Mr. Guilday: As to an affidavit saying I have not violated the drug laws?

Unknown Speaker: Yes.

Mr. Guilday: I still think that is more intrusive, because it is covering a larger period of time than is a drug test on one specific day that discloses only the presence of five specific drugs.

Unknown Speaker: May I ask in that connection whether it would be constitutional or not to require an affidavit?

At least it would not be a search, whereas I think you would agree that this test does involve a search.

Mr. Guilday: This Court has established that it is a search, so--

Unknown Speaker: Now, similarly we go into the financial disclosure area and say an affidavit describing one's finances would not be a search, but do you think under the reasoning you're advancing in this case that Georgia could constitutionally require every candidate for public office to say not only what his finances are but say, you may examine all of my private papers in order to be sure I haven't committed a violation of law in the past, and you'd get a full picture of my finances.

So instead of a financial disclosure statement, we just say, you may search my papers, all of my private papers to try and find out if I've been guilty of any wrongdoing.

Would that be permissible?

Mr. Guilday: --That would not be permissible.

Unknown Speaker: Why not, because it would probably weed out the unqualified candidates.

Mr. Guilday: The test comes down again to balancing how intrusive is the nature of that infringement on First Amendment rights versus how intrusive is it in the Fourth Amendment context.

Unknown Speaker: You'd rather have your papers searched than your body searched?

I don't... I'm not sure that that's... as far as intrusiveness is concerned--

Mr. Guilday: I'm not sure it's a question of which I would rather.

This Court has held in the financial disclosure area that there are limits on what those statutes can require.

They have not gotten so far... this Court and other courts have not gone so far to require a full production of income tax records, which would reveal a variety of information... you know, how many times I've gone to the doctor, how many businesses I own, or what... all of the other financial transactions I might have had.

Questions--

Unknown Speaker: --Well, I suppose there are Federal laws that say income tax returns are not open to examination by third parties.

Mr. Guilday: --That's the point I'm making, that to compel--

Unknown Speaker: But there's no Federal law, is there, saying that a State may not require a proposed candidate to make certain certifications or affidavits before being a candidate?

There's no Federal law about that, is there--

Mr. Guilday: --There's no--

Unknown Speaker: --restricting the qualifications that a State may set for its elected officials?

Mr. Guilday: --The same constraints that apply in this case, and that is the First Amendment, how in the elections context--

Unknown Speaker: You think the First Amendment is violated by seeking... by a State requiring an affidavit of a potential candidate disclosing all criminal offenses of which the candidate has been convicted in the past?

Mr. Guilday: --Perhaps we should look at the Tenth Amendment.

The Tenth Amendment says that a candidate restriction or a ballot restriction is constitutionally valid if it is a reasonable and nonarbitrarily intrusive restriction upon the individual's fundamental rights.

Unknown Speaker: Well, I wouldn't have thought you could derive all of that from the Tenth Amendment.

It doesn't say anything about ballot restrictions that I know of.

Mr. Guilday: This Court has used the Tenth Amendment to authorize the States to control their own elections, to regulate their own elections.

Of course, within those constraints--

Unknown Speaker: So you take the position that a State cannot ask... make it a requirement for a candidate for State office to file an affidavit disclosing criminal offenses of which that proposed candidate has been convicted?

Mr. Guilday: --No, I do not take that position because criminal--

Unknown Speaker: You just did in response to my question, so what is your answer?

Can a State do that?

Mr. Guilday: --My answer is--

Unknown Speaker: Yes or no.

Mr. Guilday: --Yes, if it is otherwise constitutional.

Your question--

Unknown Speaker: Well, what other constitutional issues does that raise?

These are matters of public record.

Is it some constitutional violation to require an affidavit on some matter of public record--

Mr. Guilday: --No.

Unknown Speaker: --on a proposed candidate?

Mr. Guilday: No, and that was going to be my answer.

No.

Criminal convictions are matters of public record in most States.

In some States they are not.

And so no, that would not be a restriction that impinges the Constitution in any way.

However, the financial disclosure statements, because of the privacy interest that that intrudes, yes, does touch upon constitutional issues, and at that point this Court has called... has made limits on what information can be revealed.

It's not an across-the-board, open all your papers up to the--

Unknown Speaker: Can you... have you finished your answer to Justice O'Connor?

Can you... can I get you back to the Fourth Amendment?

That's the part of this case that I'm most interested in, because it does raise a Fourth Amendment issue.

Do you agree that if the State required, as a condition for running for office, that the candidate must allow a representative of the State to make... or, say, a certified public accountant of his own choosing to make a thorough examination of all his financial papers, including his income tax returns... I don't think there's any Federal statute that says he can't make his income tax returns available if he wants to... that that would violate the Fourth Amendment?

Do you think it would or would not?

Mr. Guilday: --I'm sorry, your hypothetical--

Unknown Speaker: My hypothetical is, the State requires not just a financial disclosure affidavit, but an opening up of the candidate's records for examination by a representative of the election commission, or whatever it is, to find out if this man may have committed some crimes or done a lot of bad things that the electorate would like to know about, such as possibly buying and selling drugs from time to time, which might be revealed by his financial records.

In order to accomplish that goal, could they require that sort of a general requirement of candidates?

Reveal your financial papers.

We don't want to trust your word that you did or did not do it.

Mr. Guilday: --It comes back to the same balancing test, and that is, how invasive are those... is that restriction, or--

Unknown Speaker: They're invasive in that they reveal everything that's in writing in your private files about your correspondence with people and your financial transactions.

Mr. Guilday: --I think that requirement would require the candidate to disclose much more information than would be permitted under the Fourth Amendment.

Unknown Speaker: Do you think it would violate... that statute would violate the Fourth Amendment?

Mr. Guilday: I do.

Unknown Speaker: And your reason for saying, this is different, is that the search is less intrusive?

Mr. Guilday: Exactly, just as this Court has held in Skinner, Von Raab, and Acton.

Unknown Speaker: Because it is a body search as opposed to a paper search?

Mr. Guilday: I don't think the distinction is body versus paper.

I think the distinction is what information is disclosed.

Unknown Speaker: Well, what about a case... let's take a building search.

I suppose the State has just as much interest in assuring itself that its candidates and its officers are not drug possessors and drug dealers as it has in assuring them that they are at least not current drug users.

Would it violate the Fourth Amendment to require a candidate to open his house to a search by some private investigatory agency which would then certify after the search that no drugs were found there?

Would that violate the Fourth Amendment?

Mr. Guilday: I believe it certainly would violate the Fourth Amendment.

Unknown Speaker: And why is opening the house less intrusive than opening the body?

Mr. Guilday: The difference is in the information that is disclosed.

Unknown Speaker: Well, the information in the one case says there are no drug residues in the body, and the information in the other case is, there are no drugs in the house.

Why is there a significant distinction between those two disclosures?

Mr. Guilday: There's two distinctions.

In the Georgia statute, yes, we require the candidate to submit the urine sample.

The information comes back only to him.

That is, whether or not there are--

Unknown Speaker: And he then has to pass it on... and I guess I was assuming... maybe I didn't state it carefully enough, but I was assuming that in my example he would have to pass on the certification from the private investigatory agency.

In each case the candidate could withhold the certification and be disqualified.

Assuming that, is there any distinction in principle or practice between the degree of intrusion?

Mr. Guilday: --The private investigatory agency has learned a substantial amount of information.

Unknown Speaker: Well, so does the laboratory or the tester in the case of the bodily search.

Mr. Guilday: The tester learns only the presence of those five drugs.

Any other individual that walks into a candidate's home or to my home learns everything about me, and I think that's the distinction, the amount of information that's disclosed by the required test.

Unknown Speaker: Or the amount of what is searched also.

Isn't that relevant also?

I mean, wouldn't your answer be different if the test in question, even though it only came up with those five drugs, is a test that required a full body search, body cavity search and everything else.

Mr. Guilday: That's absolutely true.

Unknown Speaker: Your point here is this is just a urinalysis.

That's all that's involved.

How does this test work, actually?

Like... I don't see how... I'm not totally familiar with how the statute works.

It sounds as if it tells a candidate, well, in some 30-day period of your choosing go in and get a drug test.

Is that what it does?

Mr. Guilday: Not within some 30 days of your choosing, 30 days within the qualifying deadlines for the particular office that you were running for.

Unknown Speaker: Is it a deadline, or is it when he files?

I mean, it's usually... say the deadline's September 30.

Suppose he files the preceding June 30.

Mr. Guilday: No.

This statute says--

Unknown Speaker: It has to be... in other words, the deadline's September 30.

It has to be in the month of September.

Mr. Guilday: --The particular offices that are involved in the statute have particular times for qualifying.

Unknown Speaker: So you have to be 30 days previous to that.

Mr. Guilday: Right.

Unknown Speaker: You find one day where you go in and you're drug-free.

Mr. Guilday: That's correct.

Unknown Speaker: All right, so how's that supposed to prove anything?

I mean, I guess the greatest druggie in the world could go in and find a day when he was drug-free.

Mr. Guilday: As this Court held in Von Raab, perhaps the greatest druggie in the world could not.

Unknown Speaker: Is that right?

That's what I don't know.

I mean, how... what are the facts?

That is, if a person does take drugs, is it impossible to find a day in a 30-day period when he's free of drugs and would pass the test?

Mr. Guilday: That, of course--

Unknown Speaker: Suppose he stays off drugs for a month preceding, or 2 months preceding the test.

Mr. Guilday: --If that particular individual can do that, yes, you're right, when he goes in for his drug test, his drug test is going to become positive--

Unknown Speaker: How long in advance of the test do you have to stay off drugs if a moderate drug user, before the moderate drug user is drug-free on the day of the test?

Is 3 weeks good enough?

Is 4 weeks good enough?

Mr. Guilday: --The cases before this Court have cited expert testimony giving a range of from 22 days until a month before.

Unknown Speaker: All right.

So I mean, what is the statute doing?

Mr. Guilday: It's doing--

Unknown Speaker: Is it simply... what is the theory behind the statute other than making a political statement?

Is it that there are some people who want to run for office who find it impossible to refrain from drugs for 22 days prior to their voluntarily going in and taking the test?

I mean, what is the theory of the statute?

Mr. Guilday: --I think that is one purpose, to--

Unknown Speaker: Is that an important purpose, a purpose that we find those people in society who are not able to stay off drugs for 22 days and therefore... is that the basic idea?

Mr. Guilday: --That is not the primary reason, no.

It is a reason that this Court in Von Raab found to be significant.

In our case, the primary purpose we would offer this Court for this statute is that the information that a negative drug test gives to the public about the individual candidate is significant.

Unknown Speaker: Has this Court ever gone into the... I mean, I thought in Vernonia, for example they're like random drug-testing.

Random drug-testing, of course, catches people.

Mr. Guilday: That's correct.

Unknown Speaker: Have there been cases which are not random drug-testing?

Mr. Guilday: Von Raab involved pre-employment or pre-promotion testing, one-time basis, of individuals who sought positions in the various categories.

It was not random testing.

Unknown Speaker: Ms. Guilday, do I understand you correctly that your major reason, Georgia's major reason is symbolic to the extent I think you said they wanted the public... they wanted the people who were in public office to have what it takes to exercise their best judgment.

Is that--

Mr. Guilday: That is our purpose.

It is not our position that that is a solely symbolic purpose.

It may have symbolic implications, but because a statute is symbolic, if it's otherwise constitutional, does not render it constitutional.

Unknown Speaker: --This is my question, then.

If it comes down to, this is not like the random test that's designed to catch people but is in part symbolic, and the State is making a judgment, and then we have a Constitution with the Fourth Amendment in it, if we're choosing between the public perception, the lesson that we want to teach the people, doesn't the constitutional amendment come first, come before the notion that we want people to show that they can exercise their best judgment by being willing to submit to drug testing?

Mr. Guilday: My way of answering that question is what I started saying in the beginning.

The Fourth Amendment requires the balancing test that this Court used in Skinner, Von Raab, and Acton to determine whether or not a particular--

Unknown Speaker: But my question to you is, then, doesn't the Fourth Amendment always win on that balance unless you have a good reason, a reason beyond, we want to show that these people take tests.

One reason is that you would catch people, as was the case in the train engineer, but here that's not the purpose.

Mr. Guilday: --The Fourth Amendment always wins out if in that balancing test the government interests are not sufficient to outweigh the privacy interest.

It is our position that when you do that test in an elections context in which the people have a right to know anything about a candidate which touches on their qualifications for office--

Unknown Speaker: Then go for... once they're in office, and they're going to be in and maybe run for election, so do this periodically?

Can people have any less... is their interest any less if we're doing this balancing?

Mr. Guilday: --No, the balancing is no less in that context.

The distinction or the reason for not requiring them then primarily are procedural.

Once--

Unknown Speaker: But you could... as a matter of constitutional law, Georgia could say, annually, or even randomly, everyone in office in this State has to have a drug test.

Mr. Guilday: --Everyone in the category of offices that are included in the statute, yes, I believe Georgia could have--

Unknown Speaker: But if you rely on the public's right to know everything about the candidate, as I think you described it, it seems to me that that would justify a totally unrestricted search of the house and all private papers.

Mr. Guilday: --I said that and I... and that is a quote from one of this Court's cases.

However, obviously the Constitution has to define everything.

Unknown Speaker: And the Constitution looks a little more closely at totally suspicionless searches, doesn't it?

Mr. Guilday: It does.

Unknown Speaker: Yes.

I take it... or I took it that part of your argument for the State interest that sort of overcomes the private interest here is based on the Tenth Amendment, and I'm not sure that I understand that argument.

I mean, I take it you do not argue that the Tenth Amendment in effect gives the State some kind of right or some dispensation from the Fourth Amendment, so what is the Tenth Amendment argument?

Mr. Guilday: The Tenth Amendment argument is, in this balancing test that's required in the Fourth Amendment, that in the usual context the scales start out even for both sides.

What the Tenth Amendment does is, it tips those scales from the outset on the side of the government because--

Unknown Speaker: Why?

Mr. Guilday: --Because the Tenth Amendment in the cases this Court has held in the elections context say, we are going to give great deference to the State's own characterizations of its interest in the elections and in particular in the qualifications of its elected officials.

Unknown Speaker: Well, there's no question of there being an assertable Tenth Amendment interest there, but there's no question about there being an assertable Tenth Amendment interest to prosecute homicide, but that doesn't affect the balancing that goes on in determining... or that does not affect the Fourth Amendment analysis.

Mr. Guilday: I'm not sure I understand--

Unknown Speaker: Well, I suppose if someone challenged the right of the State to prosecute murder we would say, well, that certainly is not one of those powers that was taken away from the State when the national Constitution was ratified.

Mr. Guilday: --That's absolutely--

Unknown Speaker: I don't see how that would affect the Fourth Amendment analysis when somebody objected to an unreasonable search and seizure that had resulted in evidence that the State wanted to introduce in a homicide case.

Mr. Guilday: --The distinction being that the Tenth Amendment and in particular the elections context has repeatedly been given by this Court special consideration.

In Gregory--

Unknown Speaker: Well, we've said that a great deal of discretion over elections is within the State's power, but that's as far as we've gone, isn't it?

Thank you, Ms. Guilday.

Mr. Guilday: --Thank you, Your Honor.

Unknown Speaker: Mr. Chandler, you have 5 minutes remaining.

Rebuttal of Walker L. Chandler

Mr. Chandler: An interesting aspect of the Tenth Amendment question to me is that that the States... that which was not granted to the Federal Government specifically was... the rights not granted to the Federal Government was reserved to the States or the people respectively, and when the States appear to jealously protect their rights, they are not so jealous in protecting the rights that the people reserved unto themselves, and one of those rights is that a citizen should be free from unreasonable searches and seizures.

Unknown Speaker: Mr Chandler, do you think this case would be stronger for the State if it was random drug-testing?

Does that thought comfort you, if they amended this statute to make it random?

Mr. Chandler: It would not comfort me, Your Honor, and I'm not sure--

Unknown Speaker: This is stronger, isn't it, because it says... basically what she said was that this is the State's interest only in making certain that the really serious drug users who can't stay off drugs for 30 days, which you have to be quite a heavy user, that they want to identify those people, so she said that's a very important interest, identifying these very, very heavy drug users, and against that it's a fairly limited intrusion.

I think that was her point.

So what would your reply be to that?

Mr. Chandler: --The State might be in a better position if they had some sort of random search system for people who had been elected to office.

However, I think even such a search would violate the principles that have been enunciated by this Court in Skinner, Von Raab, and the Vernonia School District case, because there has to be some nexus between the tests, and there has to be some compelling State interest, and there has to be a showing of, not potential harm, but an actual existing harm.

I don't know, for example, that they've ever shown that commissioners of agriculture in Georgia have a heavy drug problem, or for that matter lieutenant governors.

Unknown Speaker: Well, what if they show that there was a commission of agriculture in Alabama and a lieutenant governor in Alabama who turned out to drug addicts.

Does Georgia have to wait for it to happen in Georgia?

Mr. Chandler: I'm not sure, Your Honor, but I would sort of think so.

I would also just--

Unknown Speaker: But isn't your real argument they have to wait at least till it happens in Alabama.

[Laughter]

Mr. Chandler: --A lot of things happen in Alabama that don't happen in Georgia, Your Honor.

[Laughter]

Unknown Speaker: Does the State have to show that he was a worse secretary of agriculture because of that drug habit?

Mr. Chandler: I would think so, Your Honor, although arguably--

Unknown Speaker: I mean, it's supposed to be good for poetry.

I don't know what it does for--

[Laughter]

Mr. Chandler: --And how... and also, Your Honor, how could we argue that drug users would be any worse than the General Assembly Georgia has now.

[Laughter]

There's an old saying down in Georgia that no man's liberty or property is safe as long as it's in session, and 21.2.140 is a perfect example of that, where for the most cavalier of reasons, just pure symbolism, they want to take away people's Fourth Amendment rights, they want to make people stand up and take these tests so as to somehow show that they are... by a piece of paper that they... that's easily avoided that they can be qualified to hold high office.

Unknown Speaker: One point that you made in your brief was that this is... this test is not very serious because it would catch at best the worst cases, but you certainly wouldn't find more satisfactory a test that was less hard to beat, a test more pervasive, so I didn't understand your point about the lack of effect of this test.

Mr. Chandler: This test is even worse because it involves cheap symbolism.

The other test would violate the Fourth Amendment protections announced by this Court in Von Raab and the other cases as being suspicionless.

I would like to just say finally that this all reminds me of what Franklin warned us about, is that people who would give up some of their liberty to get some security will end up with neither liberty nor security.

And we are rapidly approaching a time in this country where there are absolutely no technological limits to what a government can do to make sure that people are obeying its edicts.

There will be a possibility of hair testing to show that people can... have used something that the government has declared illegal within the last 6 or 8 months based on where in the hair... the fact that we can force obedience by these people should not necessarily mean that we should do so, especially if what that means is that we have to give up our constitutional rights to do so.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Chandler.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Vernonia School District v. Acton - Oral Argument

Fri, 09 Jan 2009 14:49:58 +0000

Case:

Vernonia School District v. Acton

Media File:

94-590_19950328-argument.mp3

Related Transcript:

1994_94_590_argument.xml

Transcript:

Argument of Timothy R. Volpert

Chief Justice Rehnquist: We'll hear argument now in Number 94-590, Vernonia School District.

Is that the way you pronounce the name of the--

Mr. Volpert: Yes, it is, Mr. Chief Justice.

Chief Justice Rehnquist: --Versus Wayne Acton.

Mr. Volpert.

Mr. Volpert: Mr. Chief Justice, and may it please the Court:

The issue presented is whether a school district faced with a serious drug problem with student athletes at its core may reasonably require athletes to submit to drug testing absent individualized suspicion.

The school district has established a serious threat to its ability to educate its students and to the safety of its athletes--

Justice Souter: Has it identified that threat as drug use, as opposed to, sort of a lot of bragging about drug use?

It seems to me, my recollection is that the, kind of the hard evidence on the actual usage was on the thin side, whereas there was plenty of evidence that people were going around bragging about drug use, glorifying drug use, giving the impression that it was a smart thing to do, and kids at that age claim to have done a lot of things that they haven't done.

Where does the, sort of the hard evidence stop and the evidence of talk begin?

Mr. Volpert: --The hard evidence of drug use consists, Justice Souter, of observations on numerous occasions by a teacher of students smoking marijuana across the street, arrests of student athletes for using drugs, confiscation of drug paraphernalia on school grounds, admissions by students to the principal that they have used drugs, admissions by certain student athletes to the coaches that they had used drugs, coaches' observations of marijuana coming from the room of athletes the day after a serious injury--

Justice Souter: Well, there was one example of that, for example.

Was there more?

Mr. Volpert: --I'm sorry, of what?

Justice Souter: I mean, the... as I recall the briefs, there was one example of a coach going into a... I think it was a wrestler's room, and he smelled... after the kid had been injured, and he smelled pot.

I mean, were there other instances of that?

Mr. Volpert: There were no other instances that I can recall from the record, Justice Souter, where the smell of marijuana, where the teachers or coaches noticed the smell of marijuana.

Justice Souter: I think that's what's bothering me, because... I'm sure you didn't intend this, but I think you spoke of it in the plural, and yet there was only one instance of it, and that's why I'm troubled by the difficulty of figuring out just what is provably there about use, as opposed to what is generalization, or what is generalization about student bragging.

Mr. Volpert: Well, I could only answer that by saying that I believe that we have numerous... I don't believe, we do have numerous observations, admissions, proof of athletes being arrested for the use of drugs, and there is... I believe what you're referring to is, there is one instance, and I did not mean to speak of it in the plural, where a wrestler... where a coach smelled marijuana coming from a wrestler's room.

The one thing that it seems to me is missing from this record is a direct observation of a student athlete using drugs and then, for instance--

Justice O'Connor: Well, Mr. Volpert, did the school district try a drug testing scheme based on reasonable suspicion that a particular student might be experimenting with drugs?

Mr. Volpert: --If you mean urinalysis drug testing, Justice O'Connor, no, they did not.

Justice O'Connor: Well, the same kind of testing you're doing under... or the school was doing under this random--

Mr. Volpert: No, they--

Justice O'Connor: --testing.

You didn't ever use reasonable suspicion, and for those that the coaches suspected of using drugs--

Mr. Volpert: --We did not--

Justice O'Connor: --Ask them to be tested.

Mr. Volpert: --Excuse me.

We did not ever combine reasonable suspicion with urinalysis drug testing.

Justice O'Connor: Why not?

Mr. Volpert: There's no direct evidence in the record with regard to that.

I can only surmise that the district determined, the school district and the school board made a reasonable determination that first of all they would have difficulty making a reasonable accusation based only on suspicion of drug intoxication, and second of all, that they assumed that there would not be the deterrent effect that a random drug testing program would have, because the only way to... if you are basing it on reasonable suspicion, you are largely left to observing behavior, and bizarre behavior, and then reaching a conclusion--

Justice O'Connor: Or relying on what people have been saying.

If somebody says they have been experimenting, you don't think that would give rise to reasonable suspicion--

Mr. Volpert: --Well, the--

Justice O'Connor: --that it might be true?

Mr. Volpert: --The problem is that if someone says on Wednesday that they have used drugs in the past, I am not at all convinced that there would be a reasonable suspicion sufficient to test them at that time, just based on conversations of past drug use.

Justice Kennedy: Do you think that the rule that we announce ought to be a rule that's specific on a school-by-school, case-by-case basis, or would it be plausible for us to say, a) there is a drug problem of dangerous proportions in this middle and high school population throughout the country, and that even those schools that are relatively drug free have a strong interest in keeping themselves that way?

Mr. Volpert: Justice Kennedy, I believe that this Court's holdings in Skinner and Von Raab, this Court could reach such a conclusion.

However, I think that there is a reasonable basis for drawing the line and requiring individual school districts to establish, or to reasonably conclude that they have individual problems.

Justice Kennedy: Each district, or each school?

Suppose there are three high schools, one with a serious drug problem, the other mild... the other mild by today's standard, which means only 10 percent of the students are using them from time to time... and the other substantially less than that.

Could you have a district-wide rule?

Mr. Volpert: If the school district on the local level determined that there was a serious drug problem in one of the schools, and after deliberation reached a reasonable conclusion that there was an immediate threat to the other schools, I believe you could.

Chief Justice Rehnquist: How about our decision in the City of Renton case dealing with adult bookstores and so forth?

There we said that one city council could rely on findings made by other city councils as to the effect of adult bookstores in connection with neighborhood deterioration?

Mr. Volpert: Mr. Chief Justice, I believe that certainly a school district could rely on evidence of a drug problem in neighboring school districts.

I also believe that based on this Court's decisions, especially in Von Raab, this Court could decide that a school district without any drug problem could rely on national evidence, but I think that there is a reasonable basis for drawing a line and allowing individual school boards to make that determination.

That is not to say that it would have to be based on... that it has to be based on evidence in each school in the district.

That does not say that it cannot be based on evidence of a drug problem in the county, or in the general area.

If there is a reasonable belief of a serious and eminent threat of drug use in the schools, we believe that testing should be allowed.

Justice Souter: Now, by the same reasoning, shouldn't testing then be allowed through the entire school population?

And haven't, in fact, you made... if your case is good here, haven't you in fact made a case for random testing of the entire school population in these schools?

Mr. Volpert: Justice Souter, under the facts of this case, I believe we have probably made a sufficient case for drug testing of the entire student body of the Vernonia School District.

Justice Souter: Because your argument basically is that the nonathletes tend to follow the lead of the athletes, so that if your hypothesis is right, then sort of--

Mr. Volpert: No.

Justice Souter: --throughout the school population you're doing this.

Mr. Volpert: No, that would not be our argument.

Our... my argument is that that, in fact, occurred.

I would not... to the extent... I would not base that on speculation that because athletes are using drugs, that there might be a spillover effect.

In this case, there is proof, I believe the district court called beyond any reasonable doubt, that there was a drug problem which was all-pervasive throughout the school system, athletes and nonathletes.

Justice Ginsburg: Mr. Volpert, isn't there a significant difference between the people who go to school, who are required to go to school by State law, and athletes?

The athletes sign a consent form, do they not?

Isn't there a difference between athletics, which is a volunteer activity... I thought that you were relying on that distinction, and that's why you were limiting the testing to the athletics program, but now you tell me no, it's just on the basis of pervasive drugs.

You could randomly test all students.

Mr. Volpert: Justice Ginsburg, in this case we have a serious threat to athletes and a serious threat to preservation of discipline and order in the schools.

In our case, we have both.

In response to Justice Souter's question, I was simply suggesting that it would be possible to establish a situation that was so bad in the general school population and was such a threat to the preservation of order in the schools that would justify testing of all athletes... excuse me, of all students.

That is not--

Justice Souter: But didn't you also say that you had it here, that you had made the case here, or could have made the case here?

Mr. Volpert: --I think hypothetically we could have made that case under these facts.

Justice Souter: So that you didn't... on your theory you didn't need, as Justice Ginsburg points out, the feature of the voluntary consent form.

Mr. Volpert: Our case is based on both.

I am responding to a hypothetical.

I do not think that in all circumstances it is necessary for you to have both.

Justice Souter: Serious enough problem, you don't need the consent; less serious problem, you might need it?

Mr. Volpert: Extreme problem.

Justice Stevens: Let me ask a different question.

Supposing... if it's that serious, you're also assuming it's so serious you can't... you wouldn't have any individualized suspicion as to particular students who might be using drugs.

It would be sort of a contradiction, it seems to me.

Mr. Volpert: Well, I don't think so, Justice Stevens, because if you... it's kind of hard to characterize the record in this case, but when you read the record in its entirety, you realize the extent to which drug use became... the extent to which disciplinary problems became pervasive.

Justice Ginsburg: But Mr. Volpert, we have findings.

What did the... the district court made findings, and the Ninth Circuit said, we accept those findings.

Mr. Volpert: Correct.

Justice Ginsburg: Rejected... even though the Ninth Circuit came out the other way.

Those facts are the ones that control this case.

And what were the facts that the district court found?

Did they find... the district court find that everybody in the school was involved, or what exactly is the fact basis for the case?

Mr. Volpert: The district court found, Justice Ginsburg, a startling and progressive increase in the use and glamorization of drugs, characterized the studert body being in a state of rebellion, characterized... said a general flagrant attitude that there was nothing the school could do about their conduct or drug use typified a usual day.

Teachers testified about a tremendous difference in the type of behavior than they had seen over the course of the last 16 or 17 years.

Justice Stevens: None of that sounds like it's confined to athletes.

Mr. Volpert: Pardon me?

Justice Stevens: None of that sounds like it's confined to athletes.

Mr. Volpert: Justice Stevens, the district court found that the athletes were among the leaders of the group in the classroom who were causing disruptions.

Justice Stevens: How do they know that if they don't have individualized suspicion?

That's what puzzles me.

Mr. Volpert: How do they know that--

Justice Stevens: Yes.

Mr. Volpert: --That the athletes were being disruptive?

Justice Stevens: No, no.

They know who the leaders are who are the most frequent users of drugs, but they don't have any individualized suspicion as to particular individuals.

Mr. Volpert: Well, the district courts referred to the conclusion that this was... that the conduct was drug-related, if that's what you're asking, as being inescapable, and the Ninth Circuit said that the district... the district officials observed conduct which was so far out of the norm that drug use was a logical conclusion.

Now--

Justice Stevens: Well, that would be individualized suspicion, wouldn't it?

Mr. Volpert: --Well, I don't think so necessarily.

If you see in the classroom someone misbehaving, and you're a teacher, you at that point have to make an important choice if you're suggesting that you drug test based on individualized suspicion.

You have to decide... make very difficult decisions as to whether this behavior is so bizarre that it indicates the use of drugs, and that you're going to make an accusation and drag someone down to the principal's office--

Justice O'Connor: But Mr. Volpert, isn't that pretty much what the Fourth Amendment is designed to require, something based on individualized suspicion, and the school district didn't even try that, did they?

Mr. Volpert: --Well--

Justice O'Connor: I mean, the school made no effort to at least launch its program on the basis of some kind of testing based on individualized suspicion, and I think in the school context we've said it doesn't have to be probable cause, but there was no effort made to do that, was there?

Mr. Volpert: --There was no... let me draw a distinction, Justice O'Connor.

There was no drug testing program based on reasonable suspicion.

Justice O'Connor: Right.

Mr. Volpert: The district took many, many steps to try to solve it as a behavioral problem--

Justice O'Connor: Well--

Mr. Volpert: --observing behavior and dealing with it.

Justice O'Connor: --let me ask you this.

Suppose we were to conclude that at least on this record the school should try individualized suspicion.

Now, it's overlaid here by the use of consent forms.

Do you take the position that if there is a valid consent form by the student and the student's parents that there would for that student not have to be individualized suspicion?

Mr. Volpert: We have never relied on the consent form in this case.

James Acton--

Justice O'Connor: But could you?

Mr. Volpert: --did not sign a consent.

Yes, I believe we could.

Justice O'Connor: Yes, so you might have some combination in effect.

Mr. Volpert: The problem, Justice O'Connor, with individualized suspicion is clear in our record in the problem of drugs, it was clear in the record in Skinner, and clear in the record in Von Raab.

Because it is so difficult to detect for certain that you have any kind of drug involvement in behavior, especially with adolescents--

Justice O'Connor: A reasonable suspicion doesn't mean for certain, does it?

Mr. Volpert: --No, it does not, but when you are asking a teacher to actually make an accusation of drug use, and that accusation is based on a number of circumstances, it is far less intrusive in a circumstance like this to allow the random drug testing rather than just fingering individual athletes, taking them to the principal's office, and make them submit to the test.

You would also--

Justice Kennedy: It's not only less intrusive, I take it the suggestion of individualized suspicion would alter fundamentally the relation between the student and the teacher.

Mr. Volpert: --I think it would, Justice Kennedy.

Certainly under this record I think virtually everyone acting up in the classroom would have been taken down to the principal's office and basically accused of drug use.

In this situation, contrary to the position--

Justice O'Connor: Not accused, just asked to be tested, isn't that the proposal?

Mr. Volpert: --Except that in the situation of individualized suspicion, you are telling an individual student, I believe that you are using drugs, and I think the Court must focus on the burden that that places on teachers to actually make that type of accusation.

They are not experts in the field.

Justice O'Connor: Well, if it's combined, however... if all the school wants to do is test student athletes, and if all but a handful have signed valid consent forms, I assume as to those with valid consent forms that the existing program could be used.

That leaves you with a handful of people who decline to sign a consent form, I suppose.

Mr. Volpert: That would.

Another problem with reasonable suspicion, of course, is in the case of drug use, most of the time you're going to miss it.

That may be the primary problem.

The expert testimony is that 90 percent of the time, you're not going to detect drug use.

Justice O'Connor: How long was this random testing in effect in the school?

Mr. Volpert: It began in the fall of 1989, and the decision from the Ninth Circuit was rendered last spring.

Justice O'Connor: And during that interval of time, how many tests turned up positive?

Mr. Volpert: I believe the testimony was, an estimate from the superintendent, two or three.

Justice Scalia: It must have been a very effective program, then--

Mr. Volpert: Well, it was a very effective--

[Laughter]

Justice Scalia: --Shows how effective it was, I suppose.

Mr. Volpert: I believe it does, Justice Scalia.

It--

Justice Ginsburg: One side says it shows no problem, the other side it shows how effective it is--

[Laughter]

--but I'm wondering, Mr. Volpert, why you didn't test for the most frequently used controlled substance... well, it's not a controlled substance--

--Steroids.

--alcohol.

Steroids.

It's alcohol, I think.

Don't kids drink beer and wine?

Mr. Volpert: --I will focus on the question about alcohol.

There's no direct evidence in the record as to why alcohol was not tested.

I would assume, if I may infer from the record, that the district believed that they were better equipped to detect the use of alcohol because of alcohol being on one's breath, and perhaps the effect on gait, which is fundamentally different from the use of drugs.

Justice Scalia: Well, maybe it was because they did not think that the drinking of alcohol, which kids have been doing for a long time, produced the kind of classroom disruption that harder drugs do.

Mr. Volpert: There is a comment, Justice Scalia, from Principal Aultman to that effect, that alcohol has been around for a long time.

I think he was probably referring to that.

Justice Stevens: That makes alcohol use by high school students okay, that it's been around a long time?

Mr. Volpert: No, I think--

Justice Stevens: I don't understand that one.

Mr. Volpert: --No, I'm not... no one's saying it's okay, Justice Stevens, but I think the school board made a determination that these drugs were what were causing the problem, and it's one of the types of decisions the Court--

Justice Stevens: Do these tests pick up steroids, which I suppose athletes might be more inclined to take?

Mr. Volpert: --It did not test for steroids.

Justice Stevens: The one athlete related drug that might be involved.

Mr. Volpert: There's no evidence in the record as to why that is, although I understand that steroid testing is very expensive, and the district may have made the determination based on the cost.

Justice Souter: May I ask you a question which you may have answered, I just seem to be unclear on it.

If there were not at least generalized suspicion that there was a drug problem in schools, do you take the position that the consent form would be sufficient to authorize the random athletic... systematically random athletic testing that you were doing here?

Mr. Volpert: Justice Souter, we have never argued or briefed that issue.

Justice Souter: So your position is... here is that both, i.e., the behavioral evidence and the consent forms, are sufficient, and that's as far as your argument goes?

Mr. Volpert: No.

Our argument here is that the behavior, which disrupted the classroom severely, and the threat to student athletes were sufficient to jeopardize compelling governmental interests of the school.

Justice Souter: Oh, even without the consent from?

Mr. Volpert: Even without the consent form, yes.

We believe that this policy is constitutional notwithstanding the consent form.

Justice O'Connor: But I thought you answered my question about the consent form to the effect that that alone would provide the basis for random testing, if you didn't have more.

That's what you said.

Do you want to retract that now?

Mr. Volpert: I didn't understand that to be your question, Justice O'Connor.

Justice O'Connor: So what is your answer?

Mr. Volpert: Could I ask you to restate the question?

Justice O'Connor: Suppose all you had was a consent form, validly obtained, knowingly, willingly given by the student and the student's parents, is that enough for that student to be randomly tested for drugs, using the test in this case?

Mr. Volpert: We have never taken the position that it was, because consent was not given in this case.

Justice O'Connor: Well, what is your position today?

Mr. Volpert: I'm sorry, I do not have a position on that.

That's never been briefed, and I don't have a position on that.

Unknown Speaker: Thank you, Mr. Volpert.

Mr. Seamon, we'll hear from you.

Argument of Richard H. Seamon

Mr. Seamon: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to begin by addressing a question that arose earlier.

The question was, if there was so much evidence of drug use in Vernonia, why wasn't there enough individualized suspicion to make individualized suspicion-based testing effective?

That question is plainly relevant under the balancing approach this Court applied in Skinner and Von Raab, because even though the Court declined to impose a least intrusive means requirement in its analysis, it is plain that alternatives to suspicionless testing are relevant to decide whether suspicionless testing is actually necessary to further the governmental interest that is being asserted, and I think that the limitations of individualized suspicion testing are illustrated well on the facts of this case.

Some of the evidence concerned drug use by individual students, and would have permitted individualized suspicion-based testing of those students... for example, the students from whom drug paraphernalia was confiscated, the students who were seen smoking marijuana in the coffee shop across the street from the school, the students who were arrested for using intoxicants at a party during the school day.

But this was not the only relevant evidence in the record that there was a drug problem in Vernonia.

The school district witnessed a two to threefold increase in disciplinary problems over the course of a couple of years.

At the same time, it witnessed the rise of an apparent drug culture.

Students boasting about their use of drugs, whether true or false, was certainly relevant to the officials' assessment of whether a drug problem existed, and finally, the organization of groups with names like The Drug Cartel.

Now, maybe the fact that a student belongs to a group called The Drug Cartel does not provide individualized reasonable suspicion for testing that individual.

That would be a debatable point.

But the fact that such a group springs into existence at the same time that there is a two to threefold increase in disciplinary problems, and teachers for the first time begin hearing students boasting about drug use and writing about it in essays that they hand in to be graded clearly is relevant in assessing the existence of a drug problem.

Justice Stevens: Mr. Seamon, do you think the evidence would have supported a random program not limited to athletes, but for the entire student body?

Mr. Seamon: I don't think that it would have supported a program for the entire student body.

I think it's... the fact that the program in this case was limited to student athletes was relevant, and supports the reasonableness of the program in several ways.

Perhaps first and foremost is the fact that interscholastic sports is a voluntary activity.

The student can avoid testing simply by deciding not to engage--

Justice Kennedy: It's a little bit like saying going to graduation is a voluntary activity, as far as I'm concerned.

A lot of students consider that a very important part of their education.

I'm not sure why you should draw your answer, and draw the line you're proposing exactly that way.

If there's a school-wide problem, what's wrong with school-wide testing?

It certainly seems... in one sense, the required courses are more important than the voluntary courses.

Mr. Seamon: --The required courses are of course more important, in our view, than extracurricular activities.

One of... and the reason that we find it significant that this testing was limited to students who participated in an extracurricular activity is that it gave the student the ability to avoid testing at the same time he or she was not denied access to the required curriculum that he or she needed to get a diploma.

Justice Scalia: So I guess a school where it has a problem with drug use where it isn't the athletes who seem to be leading the thing, they're just sort of out of luck.

You're a lucky school if it's the athletes who are the potheads, but if you're in another school there's really nothing you can do about it.

Mr. Seamon: We would not draw a line--

Justice Scalia: Very strange.

Mr. Seamon: --to limit drug testing to student athletes.

We think that testing of athletes is particularly defensible because... for some of the reasons--

Justice Scalia: That wasn't the question you were asked.

The question you were asked is not whether this one is particularly defensible, but where the other one is defensible, and you said no.

Mr. Seamon: --I'm sorry if I misstated our position.

It is not our position that drug testing of all students would be invalid in all circumstances.

If a school district had a severe enough drug problem that it reasonably concluded that that was the only way in which the drug problem could be effectively addressed, then such a program may well be permissible, but it would depend to a large extent on the consequences of testing positive.

Chief Justice Rehnquist: Didn't the district here have some fear of injury to the athletes as a result of drug use?

Mr. Seamon: Yes, that's right.

It had a reasonable fear of that, and that's why testing of athletes was particularly defensible, because their engaging in that activity and playing sports posed a risk of physical injury both to themselves--

Justice O'Connor: Well, Mr. Seamon, you started, I thought, to tell us why the school district couldn't rely on individualized reasonable suspicion, but I never heard you answer that question that you posed.

Why couldn't it?

Mr. Seamon: --Well, I... let me complete the answer to that question.

I began by making the point that much of the evidence that the school officials could reasonably credit as pointing to the existence of a drug problem was not necessarily focused on individual students, and wouldn't necessarily--

Justice O'Connor: But some was.

They could have tried their program that way.

Mr. Seamon: --And some was.

Justice O'Connor: Could the school district have relied on the consent forms for... as to those students who had validly executed them?

Mr. Seamon: Yes, to the extent that valid consent was given under this Court's cases.

Justice O'Connor: That doesn't trouble like your predecessor.

Mr. Seamon: No.

Valid consent is a basis for a search, and that's always been true.

Justice Scalia: Even though it was coerced?

I mean, even though they said you can't play on the varsity team unless you give the consent?

Mr. Seamon: This is--

Justice Scalia: I mean, it seems to me the consent form is bound in with the whole program.

I agree, if you just ask voluntarily, whoever's willing to undergo testing, no penalty if you don't... is that the kind of consent form you're talking about, or is the consent form in this case?

The consent form in this case was... well, would have been coerced.

Mr. Seamon: --Well, this is the difficult question.

This is, I suppose, why petitioner isn't relying on the consent forms.

In many... there is at least a plausible argument to the extent that you're denying a student a benefit the consent is coerced, and--

Justice Souter: Well, do you rely on the forms because athletics are in effect an incidental, voluntary activity?

Mr. Seamon: --We don't rely on the forms.

We really rely on the voluntary nature, the extracurricular nature of the activity that triggered the testing.

Justice Souter: All right.

Let me give you a different example.

Maybe it won't make a difference, but let me give it to you.

What if the kids at the National Honor Society dance had been found smoking pot, and the school adopted a policy that no one could be inducted into the National Honor Society without signing one of these consent forms, would that consent would be sufficiently uncoerced to be valid, and would that then justify testing of those who had consented?

Mr. Seamon: I'm not sure of the answer to that.

I suspect that, you know--

Justice Souter: Isn't the reason that you're concerned about it that you know perfectly well that if these kids want to get into a good college and they're not in the Honor Society or the record says, couldn't join the Honor Society because they wouldn't consent to drug testing, that they're going to be at a tremendous disadvantage in college application?

Isn't that the problem?

Mr. Seamon: --That's right, and--

Justice Souter: Why isn't there a like problem for the student athletes?

Their athletic activities are taken into consideration when they apply to colleges.

Mr. Seamon: --That's right, and that's why we rely on the extracurricular, voluntary nature of the activity than the concept of consenting to it or not, because questions of consent can become very difficult, depending on the value of the benefit that you're conditioning the consent on.

I want to--

Justice Ginsburg: Mr. Seamon, you answer that you have some reservations about testing everyone based on what this Court did in Von Raab.

There was a whole category of employees.

The case was remanded, was it not?

Mr. Seamon: --Yes, that's right.

Justice Ginsburg: Do you know what was the follow-up on remand with respect to all those other people, the accountants, the animal caretakers?

Mr. Seamon: Yes.

The district court on remand upheld the testing program with respect to the categories of employees who had access to sensitive classified information, and it noted that some of the categories that this Court expressed concern about, including animal caretakers, were not subject to the testing--

Justice Kennedy: Do you take the position that the relation between schools and their students is the same as between the Government and its employees?

Mr. Seamon: --No, we do not.

It is a different one, and it is important, especially, I believe, in assessing the impact of individualized suspicion-based testing in this context.

One of the problems, to finish my answer to Justice O'Connor, with individualized suspicion-based testing is that in a sense you get both false positives and false negatives.

I mean, there may be one student who uses drugs, but simply sits quietly in the back of the classroom and gets straight D's, and that student goes unnoticed.

Argument of Thomas M. Christ

Chief Justice Rehnquist: Thank you, Mr. Seamon.

Mr. Christ, we'll hear from you.

Am I pronouncing your name correctly?

Mr. Christ: Mr. Chief Justice, no, you're not.

It's Mr. Christ.

Chief Justice Rehnquist: Christ, Mr. Christ.

Mr. Christ: Thank you, and may it please the Court:

My opponents have just offered you two justifications for this highly intrusive search.

One is maintaining order in the classroom, and the other is promoting athletic safety, and I'd like to address each in turn.

First, order in the classroom.

If that's the goal, then it seems to me that this test is completely unnecessary.

You don't need urine testing to detect, punish, and by punishing deter disorderly behavior.

Disorderly behavior is obvious.

Disruptive students give themselves away.

Urine testing isn't going to aid in detecting.

Now, it may help in explaining why disorderly students are that way, but you don't need to know that in order to detect this problem and deter it through appropriate punishment.

Justice Ginsburg: If you have an unruly student, the teacher reports a student as unruly, on your individual testing, or individual suspicion basis, could every unruly student be then subject to urinalysis because the teacher says, I've got a discipline problem here, maybe it's drugs, let's test her?

Mr. Christ: It depends on the misbehavior, but I think if there is sufficiently disruptive behavior to justify their conclusion now that these misbehaving students were all on drugs, that would perhaps, under T.L.O., present individualized suspicion to test that student.

Justice Ginsburg: Mr. Christ, I'd like you to be as concrete as possible about this, because I was troubled by your, well, you can... the answer is individual testing.

Isn't that fraught with the risk that the teacher is going to pick out the kid he doesn't like, and those are the people that will be subject to the discipline, as opposed to the random selection?

There's something even about that.

Mr. Christ: Well, the problem with the random selection is that you are subjecting every student, including those who are not disorderly, not misbehaving, to this intrusive degrading experience, and that's the problem, on the one side, to be balanced against this risk that maybe the school district would pick out certain students.

It would not apply the individualized suspicion standard appropriately, and I have no reason--

Justice Scalia: Well, I mean, suspicion, unless you mean by suspicion probable cause, I mean, a high degree of proof, you're always going to get people who are utterly innocent, and I frankly would find it much more shameful to be picked out and sent to have a drug test because I'm suspected of using drugs than I would to be part of a general school population who just repeatedly do this.

Indeed, wouldn't there be a right to individualized hearings before one is, in effect, accused of having used drugs?

Could you do that without giving some individual hearing to the student?

And all of a sudden we're into a big deal of a due process case.

Mr. Christ: --No, I don't think... there wasn't in T.L.O. a requirement of a hearing before the school officials looked into the student's purse.

They had reasonable suspicion to suspect that the student was violating school rules, and so they conducted a search.

Justice Scalia: And you don't think it was a lawsuit if they didn't have reasonable suspicion?

I mean, I can just imagine a parent whose child has been sent down to have drug testing because the child was "suspected" of having used drugs, and the parent saying, my child never used drugs, not... never suspected at all.

It's a lawsuit, isn't it?

Mr. Christ: Well, I think the intrusion here is less if you pick out the few students who are disbehaving and disorderly, and subject them to testing as opposed to take every student, including those who are well-behaved and simply want to play school sports--

Justice Scalia: I see, you're not suspected of using drugs.

Just bad kids can be drug-tested, misbehaving students.

There's no suspicion of drugs involved at all.

You're just... you're a bad actor.

Mr. Christ: --Well, my first point is, if you want to deter disorderly conduct, you just see it and you punish it appropriately.

You don't need to go beyond that and say, are drugs the cause, in order to have any deterrent effect.

Justice Scalia: You think it's better to be selected as one of the few in the school to be drug-tested on the basis of a suspicion, than to be part of the general... what is the intrusion that is involved?

Mr. Christ: Well, if you are disrupting class, then you have justified, perhaps, school officials in taking you out and subjecting you to a test.

That is less intrusive than to take everybody who is well-behaved and subjecting all of them to the test.

Justice Kennedy: Do you think--

Justice O'Connor: --The random test, though, didn't subject everyone.

I thought it was administered to a few on a random basis.

It wasn't everyone in the school, and it wasn't every student athlete, was it?

Mr. Christ: No, it is every student athlete, every athlete who tries out for sports.

Justice O'Connor: Well, the initial test.

Mr. Christ: Initial test--

Justice O'Connor: Yes, but I'm talking about the random testing.

Mr. Christ: --Thereafter they're testing 10 percent of each student each week, so that during the course of the season you're eventually probably going to get to everybody.

Justice Kennedy: Do you think the district could reasonably conclude that the dangers of an individualized suspicion requirement go beyond the danger that the teacher might single out the unpopular student, but that it changes the whole relation between the teacher and the student?

One of the big complaints of teachers is that they're being turned into policemen.

You want this Court to turn them into policemen, I take it.

Mr. Christ: I don't want to turn them into policemen, Your Honor, but there is... the relationship is, at times, adversarial.

As you pointed out in T.L.O., they're there to educate but first they also have to maintain order and discipline, and students... teachers are disciplinarians in the first instance.

Justice Kennedy: But you want us to structure the law on drug testing for individualized suspicion, which it seems to me is a very significant step forward in assigning the responsibilities of this sort of very, very difficult and highly intrusive judgment to the teacher, whereas a random testing program eliminates that need altogether, and it seems to me the school district at least could make the plausible argument that this is a reasonable alternative for it to adopt.

Mr. Christ: Your Honor, I don't want to misstate my position here.

I am not contending for urine testing on individualized suspicion.

I'm not conceding that that would be constitutional.

I am submitting to you that that would be less intrusive than the present program of random testing.

Justice Kennedy: Well, it's rather hard for us to write an opinion to say that there's a less intrusive alternative but that that's unconstitutional, too.

Mr. Christ: I think you should find that any urine testing is unconstitutional on the justifications that are given to you, but if they cannot prevent random testing of everyone, including my client, who is well-behaved and simply wants to play sports, then I'm suggesting that short of that you should have testing for those who are not well-behaved, and who are disorderly, and who are disrupting classes.

Then they should be the ones... if the school district needs to find out why these students are misbehaving, and I don't think they need to know that in order to punish the behavior and thus deter it, but if they do need to know that, then they should subject the disorderly students to urine testing, not every--

Chief Justice Rehnquist: But surely the drug problem goes deeper than just... if it exists, and the courts below found it did, goes deeper than just misbehavior in class, doesn't it?

I mean, it has other deleterious consequences.

Mr. Christ: --Sure.

Drugs are harmful to the users.

There are other deleterious consequences to drug use, but the justification that the school district has put forth throughout these proceedings is that we have students who are disorderly, and we need to find an effective means of deterring that behavior.

Justice O'Connor: Well, what if the justification offered was that there's an increased risk of physical harm, health risks to athletes who are using drugs, and as part of our policy in the school to weed out those with heart problems, or those with other special risks in athletic programs, we're going to require this kind of testing for health purposes.

Now, would that be sufficient to justify this?

Mr. Christ: No, we don't believe that's sufficient.

Justice O'Connor: Well, why not?

It would be just like testing for a hernia, or a heart problem, or asthma, or whatever else might be the case.

Mr. Christ: Well, I don't know that the school district can compel anyone to submit to an examination for those purposes, but under the safety standard that you set in Skinner and Von Raab--

Justice O'Connor: Surely you would not take the position that a school can't protect itself from risk of injury to its student athletes by requiring physical exams for all those problems.

Mr. Christ: --I'm not contending that the school district does not--

Justice O'Connor: Is that your position, that the school district can't do that for a student athlete?

Mr. Christ: --That's not my position.

I don't need to take that here.

I am contending that the risk of injury from a student using drugs in sports, in athletics, is not sufficiently compelling to justify so intrusive an invasion of privacy as urine testing.

Chief Justice Rehnquist: You agree, don't you... and surely it's done all over the country for every high school sport... you've got to take a physical exam before you can participate?

Mr. Christ: True, and my client took a physical exam here, too, which was required here, but the circumstances of that examination indicate the privacy that attaches to the passing of urine.

He took the examination in the privacy of his doctor's office.

Chief Justice Rehnquist: Well, how much privacy is there in a boy's locker room with a bunch of urinals lined up against the wall, guys walking naked from the shower to the lockers?

Mr. Christ: The point... it's substantially different.

There's a substantial difference between using a public facility and being singled out and compelled to produce urine while somebody monitors and observes the production of the sample, and then surrender the sample to the Government so it can be chemically analyzed for whatever secrets are contained therein.

Justice O'Connor: Well, would it make any difference to you if the test... if the student had an option of going to a private clinic, or private physician to have the test done?

Mr. Christ: It would make--

Justice O'Connor: Would that save it, in your view?

Mr. Christ: --No, it would not save it, but it would make it less intrusive, and that was one of the procedural safeguards that you identified in Skinner and Von Raab as necessary to reduce the intrusiveness of urine testing to a constitutional permissible level.

Independent monitors, independent test sites, no direct observation of the sample being produced, advance notice--

Justice O'Connor: But you say if all those things were done, it wouldn't make any difference.

You say that's better, but that's not enough.

Mr. Christ: --Correct.

Justice O'Connor: Well, what is enough?

Mr. Christ: I don't think anything is enough to justify urine testing of students for the purposes that have been advanced by my opponents.

Justice Souter: Do you have a fallback position?

I mean, is it all or nothing here?

[Laughter]

Mr. Christ: Well, that's the position I'm taking is, if they cannot--

Justice Souter: I know that's the position you have taken, but I mean it seriously.

Do you have a fallback position?

Mr. Christ: --My fallback position is, if they are justified in urine testing, in implementing a program, they are not justified in implementing this program because it lacks the procedural safeguards you identified in Skinner and Von Raab.

Justice Ginsburg: Then what is the program?

Can you be concrete about the program that you think would be appropriate?

First, could the school have the physical exam on the school's premises?

You distinguished the physical exam because you said it's in the privacy of the student's own physician's office, but suppose the school... this is a wealthy district, and said, we're going to do it all in school.

Would that be all right?

Physical exam includes everything including urinalysis.

Mr. Christ: You identified... let me respond this way.

You've identified these procedures in Skinner and Von Raab.

I do not read those opinions to say that each and every one of those is essential, and I do not read that opinion to say you give greater weight to one or the other.

At the same time, I don't read those opinions to say that a program completely lacking in all of them would pass muster, which is what we have here, so I can't say that if they have no direct observation but they still require disclosure of medications, and they don't use independent monitors, that that would pass muster.

Justice Scalia: Well, you have some factors here that didn't exist there, and that is the... this is an athletic program.

It's not that you have to leave school entirely, it's just that you don't play athletics.

You didn't have in Von Raab the factor that these are minors in a tutelary context.

Surely that's a factor that cuts in favor of being able to do it.

Mr. Christ: Those are two factors that do reduce the intrusiveness, but as... let me speak to both of them, first the fact that this is voluntary.

You don't have to play athletics.

That's true, but you have to appreciate how important athletics is to the school experience, especially in this school district.

The testimony on that is quite clear.

Justice Scalia: You painted a very depressing picture of this town, as I recall.

You said there's virtually nothing else to do except go to the intramural athletic games.

Mr. Christ: Actually, that was my opponent who painted that picture, but--

Justice Scalia: Oh, I see.

[Laughter]

I know somebody did.

I certainly didn't want to visit the place.

Mr. Christ: --That was the testimony they presented, and I'm just illustrating the ramifications of that.

To say that this is simply athletics and you don't have to play sports doesn't quite answer the question.

That... it still... it may be voluntary, but it's an important part of the school experience, and to compel a student to give that up in order to protect themselves from this search just simply isn't justified.

Now, as to your second point that we're talking here about students and not adults, there should not be a different standard for students than adults.

A different standard might be justified if the Government... if you accept the proposition that the Government is substantially less interested in preventing drug-related injuries to students than adults, or if you accept the proposition that students have substantially less privacy interest, that urine testing is for them not so severe an invasion of privacy as it is for adults.

Justice Scalia: Haven't we allowed schools to impose mild corporal punishment?

Mr. Christ: I don't know.

Justice Scalia: Yes, I think we have, and why is that?

Because the school has at least some portion of the authority that the parent has when the child goes to school.

It seems to me you just cannot assume that children in that kind of a context have all of the rights that an emancipated adult has in a context such as Von Raab.

Mr. Christ: I am not contending the student's rights of privacy are coextensive with an adult's, and I think you've held otherwise in T.L.O., but I'm saying when you come to something so private and personal as the passing of urine, that their rights certainly extend that far.

Justice Stevens: Let me ask you a question on that one, if I might.

What if the school had a physical examination requirement for every student at the beginning of the school year that included this particular urine test, would that be constitutional?

Mr. Christ: No.

Justice Stevens: It would not?

Mr. Christ: It would not, we don't believe, if they required just as a condition of going to school that they take a urine test.

Justice Stevens: How about a physical exam with everything except this particular test, just to be sure they're healthy, and for the good of the kids, to find out if there was any problem the school ought to be aware of?

Can they take blood?

Blood is okay, but urine's bad?

Mr. Christ: Well, you said in Skinner that blood tests, compelled removal of blood as opposed to a urine test, is substantially less intrusive, but I don't think that they would be justified in compelling a student to produce blood, simply--

Justice Kennedy: Does that rest on your assumption that there's no Nation-wide drug problem in the schools?

Mr. Christ: --I'm not assuming that there's no Nation-wide drug problem in the--

Justice Kennedy: Suppose that we assume that there is.

Does that change your answer?

Mr. Christ: --No.

I think you need to judge each drug-testing program byu the problem it's intended to solve, district by district, school by school.

Justice Kennedy: Thirty percent users in a rural high school, would that be sufficient to sustain a test where at the beginning of the year everybody takes a physical exam and there's a testing for drugs?

Mr. Christ: No, because my first contention is that you don't need the drug test in order to solve the problem of disorders... disorderly behavior in the schools, so whatever--

Justice Kennedy: I'm talking about solving the problem of drugs in the schools.

Mr. Christ: --We still don't think that it would be justified, Your Honor.

Justice Breyer: Are you saying actually you can't have a medical test?

You couldn't... I mean, a school district couldn't say we want to know how the students, whether they're nourished properly, whether they're... whether they have disease, how they're going... and so what we want to do, we'll give you the nurse or the doctor, but you couldn't require constitutionally a medical test, physical exams?

Can't they require physical exams for athletes?

Mr. Christ: They do require a physical exam.

Justice Breyer: I mean, so... couldn't... are you saying they couldn't require physical exams for students to come to school?

They want to know how the health of a student is.

Mr. Christ: I'm not saying that.

I don't think that I need to contend that here.

Justice Breyer: All right.

Well then, the problem, of course, for people is, if they can require the physical exams for the health, and I guess you could require medical... metal detectors to keep guns out of schools, a lot of things you can require, what's different about this?

Mr. Christ: Because this is so highly intrusive.

Justice Breyer: Medical exams all involve urinalyses.

Mr. Christ: That's--

Justice Breyer: I've probably had hundreds of them in my life, and so have you, and you know, what's the special thing here?

Mr. Christ: --The medical exam you're talking about is being conducted in private by the student's doctor.

It is not being conducted--

Justice Breyer: Well, people urinate, you know, in men's rooms all over the country.

It's not necessarily... and I don't mean to be... trivialize it, but it isn't really a tremendously private thing, is it?

Mr. Christ: --I think it is private when it is being compelled by the Government, and the Government is there watching and observing and collecting specimens.

Justice Breyer: All right.

What I'm trying to get you to do is to pinpoint precisely what it is that's the intrusion of the privacy interest.

That's what I'm trying--

Mr. Christ: It's not--

Justice Breyer: --That's what I'm aiming at.

Mr. Christ: --It's not the mere act.

We all urinate.

That's... has to be conceded.

[Laughter]

In fact, I might do so here, if--

[Laughter]

Justice Breyer: A serious point, which is difficult.

I think it's a very difficult thing to do, because I, like you, and a lot of other people, have some kind of instinct that there is something private going on here, but to try to pinpoint it precisely is difficult, and it's because it is difficult that I'm asking you the question, to help on this, to the extent you can, to try to pinpoint just what it is about this test that is private, and therefore offends you and many others.

Mr. Christ: I appreciate the help, and what I think is the point here is that this is being compelled by the Government, they're watching you do it, they're taking your urine, and they're analyzing it to see what secrets therein, and at the same time they are compelling a student to come forward and disclose all their private medications, and that is highly intrusive and personal to most people.

Justice Breyer: That's what I wondered, too.

Is there... is that in this case?

That is, is there in this case any indication that people who had medications that they didn't want disclosed have to proceed with the normal test, or is there... could they have their own doctor do it and give the result, or... in other words, how much is that in this case, that problem?

Mr. Christ: The disclosure of private medications, both prescription and nonprescription, is compelled by the policy statement itself, and is also compelled by the... Exhibit 109 is the urine sample specimen form.

You have to fill that out at the time you--

Justice Ginsburg: But Mr. Christ, you made a grand-scale attack on this.

This is a child whose parents did not wish the form to be signed.

The child didn't want it to be signed.

You never got to any refined question of, well, I'll sign it but I won't disclose what drugs I'm taking, what prescription drugs I'm taking, so that's... whether that feature of the program is infirm is not part of this case, is it?

Mr. Christ: --It's part of the case.

All of the testing protocol is part of the case.

We think that it is intrusive for all those reasons as well as the fact that it doesn't serve a compelling governmental interest.

Justice Ginsburg: Your case is not one to modify this program.

Your case is one that, I'm not required to submit to it, period--

Mr. Christ: Correct, but--

Justice Ginsburg: --not that it can be tailored in some way that it would be satisfactory.

Mr. Christ: --But as Justice Souter indicated, that... my fallback position is that if you say drug testing is okay, then I at least want to stop this drug test because it is being performed in an especially intrusive fashion.

Chief Justice Rehnquist: Mr. Christ, supposing that instead of feeling that drugs were the problem in the high school, the board had felt that it was alcohol that was a problem, and that they had the same reason to attribute it to athletes as the board here did to... drugs to athletes, and so... but they don't set up a urine testing program, they set up a breathalyzer program under exactly the same circumstances here.

Is that... I mean, what I'm trying to find out is, is it the fact that it's the urine factor that makes this invalid, or is it the factor that the Government administers a test to some individual?

Is a breathalyzer test okay?

Mr. Christ: No, we think not, but the problem here is twofold.

One, the purposes for which they're testing are not compelling enough: maintaining order in the classroom and preventing... and preserving athletic safety, but in addition to that--

Chief Justice Rehnquist: Well, isn't there something broader, the idea that drug use has a lot more... brings with it a lot more problems than that, just to try to ferret out drug use?

Mr. Christ: --Well, Your Honor, drugs do have a problem, and no one is denying that, and they're a problem for the young and the old, and if simply the problem of drugs on the user is sufficient to justify the Government in compelling urine tests, then we should all be subjected to urine tests.

Chief Justice Rehnquist: Well, but school performance on tests, not necessarily disruptive performance, but it just affects a student in many, many ways, doesn't it?

Mr. Christ: That's true, it does affect them in many ways, and it's a tragedy if someone takes drugs, young or old, but it has not been... that has not been offered as justification by the school district for this drug test, and if you accept that as justification for drug testing students, then I think that you have arrived very nearly at universal drug testing, because you could not confine your ruling to the school setting.

Drugs present all those problems to adults--

Chief Justice Rehnquist: Yes, but--

Mr. Christ: --as to students.

Chief Justice Rehnquist: --surely the school... the school has an interest in seeing students learn and perform in a way that the Government has no interest in seeing citizens in general.

I mean, they are not... the Government is not the tutor of its citizens generally.

Justice Scalia: Students are kids.

You have no doubt that the parents can do this if they want to, don't you?

Mr. Christ: The parents may have that right.

Justice Scalia: Well, of course.

Mr. Christ: But the schools don't.

Justice Scalia: You're dealing with people who are subject to others' tutelage, and the question here is to what extent some of that authority and responsibility can be exercised by the school districts even when the parent, particularly the parent in this case, doesn't want it to be exercised.

There may be parents who don't like corporal punishment in schools, for example, but we've indicated that we... it existed at common law, and we won't use the Eighth Amendment to say you can't have it, so you either accept it, or you don't go to public school, and the question here is whether this is another instance like that.

But you're dealing with children.

You're not dealing with adults who have a totally different set of rights.

The question is to what extent the school has some of the authority of the parents in this regard.

Mr. Christ: I don't think they have sufficient authority to justify this intrusion on privacy, and some of what we have been referring to are children, are 18 years of age.

Justice Souter: May I go back to the--

Mr. Christ: They're--

Justice Souter: --I'm sorry.

Mr. Christ: --I'd just point out, they're old enough to vote and serve on juries.

Chief Justice Rehnquist: Well, your client's in seventh grade?

Mr. Christ: My client was in seventh grade at the time of this drug test.

He is a sophomore now.

He will be 18--

Justice Ginsburg: And it's not a class action, so that's the case that's before us.

Mr. Christ: --It's not, but he's seeking an injunction against having to submit to this test for the balance of his high school career--

Justice Souter: May I take you back to the question--

Mr. Christ: --which will take him to age 17.

Justice Souter: --I seem bent on interrupting you.

I'm sorry.

May I go back to the question of intrusiveness again?

You answered the Chief Justice that a breathalyzer test, if alcohol had been the drug of concern here, that a breathalyzer test would also have been unconstitutional, other things being equal.

Mr. Christ: Well, as I understood, a random breathalyzer test.

Justice Souter: That's right.

Mr. Christ: Yes.

Justice Souter: Other things being equal, administered the same way, just do it by breath.

Mr. Christ: Correct.

Justice Souter: And you said that would be unconstitutional.

Mr. Christ: Yes.

Justice Souter: I take it, then, that the intrusive feature, or features, which are of concern to you in the urine test in fact are not the quasi-exposure of having to produce the sample with someone standing behind you, because that doesn't occur in the breath test, so I take it the reasons that you find the intrusiveness to be unreasonable is that you are disclosing the contents of something... chemicals in your urine, chemicals in your breath... and you are being forced as a protective measure in appropriate cases to disclose any drugs you may be taking that might affect the test.

Those are the two points of intrusiveness that are crucial for you, is that correct?

Mr. Christ: Correct, and I would add that you're doing all of that without ever having given suspicion to suspect that you've done anything wrong.

Justice Souter: Right.

I realize the question of justification is there, too, but the features of intrusiveness which are crucial to you are the disclosures of knowledge which in effect can be gained either from your admission of, or your disclosure of other drug use and the testing of the chemicals.

Those are the two features.

Mr. Christ: Correct.

Justice Souter: Yes.

Justice O'Connor: Now, presumably the disclosure of what other prescription drugs you might be taking could be easily cured.

These samples go to a testing lab, and the student could fill out a form saying what they are, put it in a sealed envelope, and have it transmitted to the testing, the independent testing, without ever disclosing to the school district at all what private prescription medication is in use.

Mr. Christ: It must be possible, because it was in Skinner and Von Raab, although I do not know why the school district here did not, after Skinner and Von Raab, adopt the same procedures.

Maybe there was something--

Justice O'Connor: Well, if it did, then that would go a long way towards solving your objection, I gather.

Mr. Christ: --Not--

Justice O'Connor: And make this a more reasonable program.

Mr. Christ: --It would not go far enough.

Justice Kennedy: On this record, were the results disclosed to the school officials?

Mr. Christ: Pardon me?

Justice Kennedy: On this record, in this case--

Mr. Christ: Yes.

The school--

Justice Kennedy: --And there's no particular guarantees of confidentiality?

Mr. Christ: --The disclosure is made to the school officials who are conducting the test.

They aid the student in filling out the form--

Justice Kennedy: I see.

Mr. Christ: --at the time, and so when you disclose your medication, you are disclosing to the school officials.

Chief Justice Rehnquist: Thank you, Mr. Christ.

Mr. Christ: Thank you very much.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Bowers v. Hardwick - Oral Argument

Fri, 09 Jan 2009 14:48:31 +0000

Case:

Bowers v. Hardwick

Media File:

85-140_19860331-argument.mp3

Related Transcript:

1985_85_140_argument.xml

Clips:

Hobbs' opening: Hobbs frames the question

Tribe's opening: Tribe's opening is the opposite of Hobb's opening

Transcript:

ORAL ARGUMENT OF MICHAEL E. HOBBS, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: The Court will hear arguments first this morning in Bowers against Hardwick.

Mr. Hobbs, you may proceed whenever you are ready.

Mr. Hobbs: Thank you.

Mr. Chief Justice, and may it please the Court:

This case presents the question of whether or not there is a fundamental right under the Constitution of the United States to engage in consensual private homosexual sodomy.

In 1982, Michael Hardwick was arrested and charged with the violation of Georgia's anti-sodomy statute for engaging in this conduct with a consenting adult in his home.

The case was never presented to the grand jury of Fulton County and no prosecution of Mr. Hardwick ensued.

However, in 1983, Mr. Hardwick, along with John and Mary Doe, filed a Section 1983 suit seeking injunctive relief and declaratory relief against the enforcement of Georgia's sodomy statute.

Mr. Tribe: Was there a reason, Mr. Hobbs, that it wasn't presented to the grand jury?

Mr. Hobbs: Your Honor, the District Attorney of Fulton County, who would have handled that case--

Mr. Tribe: That is Atlanta, isn't it?

Mr. Hobbs: --That is correct, Your Honor.

--indicated that it would not be presented the grand jury under further evidence developed.

That is the only reason that I know that it was not presented.

Mr. Tribe: Mr. Hobbs?

Mr. Hobbs: Yes, Your Honor.

Mr. Tribe: Is the statute enforced in Georgia?

Mr. Hobbs: Yes, Your Honor, the statute is enforced in Georgia.

Mr. Tribe: How many prosecutions have there been in the last year or five years?

Mr. Hobbs: I could not tell the Court that.

I can only say that in our experience the statute is most frequently enforced in situations where the conduct takes place in more public or quasi-public areas.

Mr. Tribe: Well, I should have framed my question more specifically.

In the context of the issue presented in this case where the activity took place in a private residence, has it ever been enforced?

Mr. Hobbs: It had been enforced.

I believe that last case I can recall was back in the 1930's or 40's in the State of Georgia.

Appellate decisions.

Obviously, Your Honor, the Fourth Amendment impedes the ability of the State of Georgia to enforce the statute when the conduct takes place in the privacy of the home.

Nevertheless, it is our position that the Fourth Amendment restrictions should not have any bearing on whether or not there is a fundamental right to engage in this conduct.

Mr. Tribe: Did you say the last prosecution was in the 30's or 40's?

Mr. Hobbs: The last reported Appellate decision concerning this type of conduct in a private setting.

Mr. Tribe: Has it ever been enforced in a marital situation?

Mr. Hobbs: Not to my knowledge.

Not in the State of Georgia at least.

Mr. Tribe: But, on its face, the statute would permit such a prosecution, would it not?

Mr. Hobbs: That is correct, Your Honor.

The statute does not differentiate between married individuals, unmarried heterosexuals or homosexuals.

It is our position that there is no fundamental right to engage in this conduct and that the State of Georgia should not be required to show a compelling state interest to prohibit this conduct.

There is certainly textual support for this proposition.

And, contrary to the views expressed by the Eleventh Circuit Court of Appeals and the Respondent, it is suggested that there is no precedential support in the decision of this Court for the proposition that there is a fundamental right to engage in sexual relationships outside of the bonds of marriage.

This Court in the Carey decision in 1976 made it fairly explicit that its previous decisions relating to contraception and abortion were restricted to state regulations which burden an individual's choice to prevent conception or to terminate pregnancy.

And, the Court concluded that it was not holding a state must show a compelling state interest every time sexual freedom is involved.

In Moore versus City of East Cleveland, Justice Powell noted the difficulty this Court has sometimes had in defining fundamental rights under the Due Process Clause of the Fourteenth Amendment and suggested, based upon numerous cases of this Court, that appropriate limits and guidelines for determining whether or not rights are truly fundamental can be found in the tradition, history, and heritage of this nation.

In that particular case, Justice Powell, writing for the plurality, concluded that the Constitution protects the family simply because the family is so rooted in the history and traditions of our nation.

Many of this Court's decisions have followed the history and traditions of our nation in making its determination as to whether or not a particular activity is entitled to constitutional protection as a fundamental right.

Thus far this Court has concluded that the right of privacy includes matters which involve marriage and family, procreation, abortion, child rearing and child education.

It has never concluded, and I would suggest to the Court that there is no constitutional warrant to conclude that there should be a fundamental right to engage in homosexual sodomy or any other type of extra-marital sexual relationships.

The common thread of this Court's--

Mr. Tribe: Let me just ask, what is your position on the application of the statute to a married couple?

Mr. Hobbs: --If Your Honor please--

Mr. Tribe: Could it be constitutionally applied or not?

Mr. Hobbs: --I believe in light of Griswold versus Connecticut that application of the statute to a married couple would make it very problematic for the State of Georgia to--

Mr. Tribe: Do you think they could or could not?

Do you think it would be constitutional or unconstitutional to apply it to a married couple?

Mr. Hobbs: --I believe that it would be unconstitutional.

Mr. Tribe: You think it would be constitutional?

Mr. Hobbs: Yes, sir.

Mr. Tribe: And, what is the right that would be protected of the married person in that situation in your view?

Mr. Hobbs: The right of marital privacy as identified by the Court in Griswold.

Mr. Tribe: And, this conduct, though it is traditionally frowned upon as I understand your brief, you would nevertheless be constitutionally protected in the marital setting?

Mr. Hobbs: Yes, Your Honor, based upon this Court's findings in Griswold versus Connecticut in which Justice Douglas stated the right of marital intimacy is older than our Bill of Right.

It harkens back to the heritage of--

Mr. Tribe: He didn't say anything about this kind of conduct.

Mr. Hobbs: --That is correct, Your Honor.

The Court has previously described fundamental rights, whether they be under the general heading of a right of privacy or other fundamental rights, is those which are so rooted in the conscience of our people as to be truly fundamental.

Principles of liberty and justice which lie at the base of our civil and political institutions, privileges which have long been recognized, a common law as essential to the orderly pursuit of happiness by free men.

The simple fact is that homosexual sodomy, which is what is involved in this case, has never in our heritage held a place--

Mr. Tribe: Is the record clear as to whether the conduct was with a male or a female?

Mr. Hobbs: --The record, I believe, Your Honor... The complaint indicated that Mr. Hardwick was arrested for engaging in sodomitic act with another male.

Mr. Tribe: Of course, this isn't a review of any conviction, is it?

The only reason you would want to show that is to show there was a danger of prosecution.

Mr. Hobbs: That is correct, Your Honor.

This is a review of a dismissal of a Section [= 1983] lawsuit and under that dismissal we are bound by the allegations contained in the complaint.

Our legal history and our social traditions have condemned this conduct uniformly for hundreds and hundreds of years.

As late as 1979 in the Palm versus Hughes case this Court indicated that it is neither illogical nor unjust for society to express its condemnation of irresponsible liaisons outside of the bonds of marriage.

I would submit to the Court that the Respondent and the Eleventh Circuit have posed no reason to distinguish the rationale of that decision.

Nor should the conduct be considered fundamental protected by the Constitution merely because it might take place in the home.

The Eleventh Circuit and the Respondents rely heavily upon this decision in Payton versus New York and in Stanley versus Georgia.

Of course, Payton was a Fourth Amendment case involving the physical intrusion of individuals of the state into a person's home.

This is not a Fourth Amendment case.

The Fourth Amendment does not... while it does provide a general right of privacy concerning the home, it does not prevent the state from enacting regulations which govern activities in the home.

Mr. Tribe: It might well, as a practical matter, I suppose, prevent the state from enforcing its law with respect to... Your point is that doesn't make the law invalid.

Mr. Hobbs: That is absolutely correct, Your Honor.

The Four Amendment, as this Court has held, protects two types of expectations, searches and seizures, and those expectations are not involved in the questions presented to the Court today.

Stanley versus Georgia, which is relied on most heavily by the Respondent, is also, I would submit, inapplicable to this situation, for in Stanley this Court found that there was an underlying right, a fundamental right under the First Amendment, to freedom to receive information and ideas and it was that right which was being infringed upon when Georgia attempted to prosecute Mr. Stanley for the private possession of pornographic materials.

This case does not involve any such underlying right.

In order for Stanley to be applicable, I would submit to the Court, this Court must find first that there is a fundamental right to engage in homosexual sodomy.

Moreover, Stanley has been limited to its facts by this Court and United States versus 12 200-Foot Reels of Film, wherein this Court decided that Stanley was a line of demarcation, that the Court would go thus far but not beyond and limited Stanley strictly to the facts of that particular case.

Concededly there are certain kinds of highly personal relationships which are entitled to heightened sanctuary from the state and intrusion.

The Respondents would urge, and the Eleventh Circuit has concluded, that the relationship involved in this case is entitled to constitutional protection as a fundamental right under the right of intimate association.

Only a limited number of associations and relationships have been found by this Court to be entitled to constitutional protection, those that attend marriage, the family, raising children, and cohabitation with one's relatives.

This Court has described those relationships as personal bonds which have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs.

Mr. Tribe: Mr. Hobbs, when you say "cohabitation with one's relatives", you mean living in the same house with them?

Mr. Hobbs: That is correct, Your Honor.

[Laughter]

I was referring, of course, to this Court's decision in Moore versus East Cleveland.

This description, I would submit to the Court, does not apply to the conduct which is prescribed by Georgia's sodomy statute.

Respondent and some amici in this case have argued that perhaps the definition of the family should be changed so as to be extended to homosexuals and other types of relationships which have not been recognized in our society thus far so as to accommodate the conduct which is prohibited and elevated to a constitutional status.

Mr. Tribe: General Hobbs, can I ask you one question that is prompted by Justice Rehnquist's notion that there are difficulties of enforcement within the home and earlier you had been asked about the extent to which the statute has been enforced.

In this case, as I read the complaint, the Plaintiff expressly alleged that he did this sort of thing over and over again.

And, I take it the state didn't take discovery to find out maybe they could prove that that was, in fact, true and, therefore, could have prosecuted him.

How do you reconcile that with the notion that there is a statute that the state seeks to enforce in a situation which he says exists in this case?

Mr. Hobbs: Well, Your Honor, to be quite frank, I do not know what was in the mind of the District Attorney when he decided not to prosecute this case.

Mr. Tribe: But, what about the state representative to defended this very lawsuit?

Mr. Hobbs: In terms of prosecuting Mr. Hardwick?

Mr. Tribe: If they thought there was an important public interest in enforcing the statute, why wouldn't they take his discovery, get him to admit he committed all these acts and then prosecute him?

Mr. Hobbs: Because at the time, Your Honor, we relied heavily, almost exclusively on this Court's decision in Doe versus Commonwealth's Attorney.

The State of Georgia was in this case by virtue of the declaratory judgment action and it was decided that a motion to dismiss the 1983 lawsuit should be found based upon this Court's decision in Doe versus Commonwealth's Attorney.

Mr. Tribe: I can understand why that would win the lawsuit for you, but I find it puzzling as to how that vindicates the public interest that this statute was supposed to serve to stop this kind of conduct.

Mr. Hobbs: Well, I think--

Mr. Tribe: Does the state really have an interest in stopping this kind of conduct?

If not, why wouldn't they enforce the statute?

Mr. Hobbs: --I think that most certainly the state does have an interest in enforcing the statute and in maintaining the statute on our books.

As I have indicated, the Fourth Amendment makes the enforcement of this statute very difficult, but the statute also--

Mr. Tribe: It would have been very easy in this case, in this instance.

Mr. Hobbs: --Perhaps so.

Mr. Tribe: Presented with a silver platter and they declined to go forward.

It seems to me there is some tension between the obvious ability to convict this gentleman and the supposed interest in general enforcement.

Mr. Hobbs: I would agree, Your Honor.

We are, however, bound by the record as it is presented to the Court and I am wary of going beyond the record to explain other evidence.

The Respondent, as I was saying, and some amici have urged that the relationship of the family should be redefined and this is one of the interests that the State of Georgia is most concerned about.

We are very concerned that there is a potential, should the Eleventh Circuit's decision be upheld, for a reshuffling of our society, for a reordering of our society.

As this Court indicated in Roe versus Wade, the right of privacy is not limited.

It is not absolute, pardon me.

There must be limits and it is submitted that in finding these limits we must be wary of creating a regime in the name of a constitutional right which is little more than one of self-gratification and indulgence.

The Constitution must remain a charter of tolerance for individual liberty.

We have no quarrel with that.

But, it must not become an instrument for a change in the social order.

The Respondents have made a crack-in-the-door argument that if the Eleventh Circuit's decision is affirmed in this case it will not go beyond consensual private homosexual sodomy; that it is submitted that this crack-in-the-door argument is truly a Pandora's box for I believe that if the Eleventh Circuit's decision is affirmed that this Court will quite soon be confronted with questions concerning the legitimacy of statutes which prohibit polygamy, homosexual, same-sex marriage, consensual incest, prostitution, fornication, adultery, and possibly even personal possession in private of illegal drugs.

Moral issues and social issues, it is submitted to the Court, should be decided by the people of this nation.

Laws which are written concerning those issues are rescinded concerning those issues should be by the representatives of those people.

Otherwise, the natural order of the public debate and the formulation of consensus concerning these issues, it is submitted, would be interrupted and misshapen.

It is the right of the nation and of the states to maintain a decent society, representing the collective moral aspirations of the people.

The Eleventh Circuit and Respondents in this case, by failing to adhere to the traditions, the history of this nation and the collective conscience of our people, would remove from this area of legitimate state concern, a most important function of government and possibly make each individual a law unto himself.

It is submitted to this Court that this is not the balance that our forefathers intended between individual liberties and legitimate state legislative prerogatives.

Thank you very much, Your Honor.

Chief Justice Burger: Mr. Tribe?

ORAL ARGUMENT OF LAURENCE TRIBE, ESQ. ON BEHALF OF THE RESPONDENTS

Mr. Tribe: Mr. Chief Justice, and may it please the Court:

This case is about the limits of governmental power.

The power that the State of Georgia invoked to arrest Michael Hardwick in the bedroom of his own home is not a power to preserve public decorum.

It is not a power to protect children in public or in private.

It is not a power to control commerce or to outlaw the infliction of physical harm or to forbid a breach in a state sanctioned relationship such as marriage or, indeed, to regulate the term of a state sanctioned relationship through laws against polygamy or bigamy or incest.

The power invoked here, and I think we must be clear about it, is the power to dictate in the most intimate and, indeed, I must say, embarrassing detail how every adult, married or unmarried, in every bedroom in Georgia will behave in the closest and most intimate personal association with another adult.

Mr. Tribe: Professor Tribe, is there a limiting principle to your argument?

You commented, but I don't think responded, to the suggestion that how do you draw the line between bigamy involving private homes or incest or prostitution and you move on to the place.

Mr. Tribe: Yes.

Mr. Tribe: You emphasize the home and so would I if I were arguing this case, but what about... Take an easier one, a motel room or the back of an automobile or toilet or wherever.

What are the limiting principles?

Mr. Tribe: Justice Powell, I think there are two kinds of limiting principles.

The first relates to the place.

Mr. Tribe: To the place?

Mr. Tribe: The place where the acts occur.

In Stanley versus Georgia, this Court suggested that the mere possession and enjoyment of obscenity at home is quite different from other supposedly private places.

And, in the Fourth Amendment area, the Court has faced the problem of defining what is a home.

It said, for example, a mobile home may not qualify.

We think that wherever that line is drawn that a private home such as this represents the repository of constitutional traditions under the Third and Fourth Amendments.

Mr. Tribe: What about incest in the private home?

Mr. Tribe: It seems to us that the private home does not shield anything that one might do there.

It seems to us that the state's power to regulate the terms of relationships, just as it regulates the terms of contracts, includes the power to punish a breach of contract in a home, it can certainly punish adultery, wherever it occurs, without--

Mr. Tribe: So, the limiting principle is limited to sodomy.

Is that a principle?

Mr. Tribe: --No, not quite.

I think it is somewhat broader to be candid, Justice Powell.

I think it includes all physical, sexual intimacies of a kind that are not demonstrably physically harmful that are consensual and non-commercial in the privacy of the home.

Indeed, Mr. Hobbs said that under his theory state should be able, without providing a compelling justification, to punish... his words were "irresponsible liaison" outside the bonds of marriage.

So, imagine for a moment an ordinance or a statute that says unmarried couples may hold hands and they may perhaps embrace lightly, but extended caresses or kissing with the mouth is forbidden.

Now, in their theory, even if this occurs in the home, under their theory as long as the state says the majority of our legislators disapprove of this conduct and, indeed, there is a long history of disapproving things that might lead to greater intimacies among unmarried people, we can outlaw it, not just outlaw it, but we can resist a request for more particularized explanation of why.

When Justice Stevens asked, what is the public interest after all, why is it to so great, you don't even want to prosecute him in this clear case of violation, I think you will notice that Mr. Hobbs retreated to generalities.

What we suggest is that when the state asserts the power to dictate the details of intimacies in what they call irresponsible liaison, even in the privacy of the home, that it has a burden to justify its law through some form of tightened scrutiny.

In your concurring opinion, Justice Powell, in Kelly versus Johnson when you suggested that a regulation on the length of hair if applied across the board to all citizens, unlike that case which was just the police, would involve an important personal liberty interest, would require a balancing of state interest against personal interest, and cited the Harlan dissent in Poe v. Ullman, I think what you recognized in that case and what I would stress here is that when a state's assertion of power over liberty occurs at the intersection of intimate personal association, which this Court has recognized in a half-century of cases, and the privacy of the home in the clearest possible sense, then there must be at least heightened scrutiny rather than the unquestioning deference that the State of Georgia would request.

Mr. Tribe: I am not sure that you have answered Justice Powell's question about incest in the privacy of the home?

Mr. Tribe: Yes.

Mr. Chief Justice, as to incest, it seems to me quite apart from problems about offspring and whatever genetic evidence there might be.

But, the state's power to define the terms of relationships and to limit potential exploitation surely includes the power in the employee/employer context to say that a parent consents to sex is not real.

In a parent/child context to say that a--

Mr. Tribe: Suppose it is parent and adult child.

Those are two consenting adults then perhaps.

Mr. Tribe: --I doubt, Mr. Chief Justice, that the state would have to assume that just because a woman is over 21, that if her father induces her to have sex, that that has got to be consensual.

We think a state can assume that there are certain relationships in the context of which, even if both people are adults, in the context of which consent, because of the power structure of the relationship, may just be an illusion, but there is nothing about this law that limits it to cases where consent is questionable or where there is some other relationship between the parties that makes this other than completely consensual intimacy.

Mr. Tribe: Mr. Tribe, your line of reasoning would make the Edmonds Act unconstitutional, would it not?

Mr. Tribe: The Edmonds Act--

Mr. Tribe: The Edmonds Act forbade the... the Moral Act forbade polygamy and the Edmonds Act forbade cohabitation by one who is already married.

Mr. Tribe: --No, I think, Justice Rehnquist, that cohabitation by one already married could be punished by the state as a breach of a state sanctioned relationship.

If the state can punish inducement of breach of contract in other cases, if the state can say that when people have made a solemn bond, a bond of status as well as contract, that it cannot be broken, I would think that laws against cohabitation and bigamy, wherever practiced, at least raise a different and far more difficult question than that here, because here the state is not saying that Mr. Hardwick was violating some relationship.

The complaint, indeed, said nothing about the relationship between Mr. Hardwick and the other person, male or female.

It just says that because the majority of us disapprove morally, we have the power, we, the State of Georgia, have the power to punish it and make it a crime.

Mr. Tribe: Well, Mr. Tribe, how do you propose that these other situations be analyzed, by some sort of heightened scrutiny as well, and are you suggesting that there is a more compelling state interest or what is it you are saying?

Mr. Tribe: I think, Justice O'Connor, there are two approaches, either of which would lead to the same result.

One is that the recognized power of the state to protect children and to protect relationships and to prevent harmful conduct is such that it would be pointless to require heightened scrutiny any more than this Court does of the minimum wage laws or other laws regulating special relationships, therefore, minimum rationality would suffice.

The other approach would be to say that if it is in the privacy of the home, scrutiny should be somewhat heightened, but it seems to me that it would be very easy for the state to show compelling justification and a compelling interest.

It seems to me that in either event the holding of the Eleventh Circuit, which is that in cases of this kind where a law reaches sweepingly to all consensual intimacy in the privacy of the home, without drawing any of the lines that a legislature might draw to deal with these problems--

Mr. Tribe: Professor Tribe, let's come back to the privacy of the home and part of the question that I asked you and I don't think I gave you an opportunity to answer, would you distinguish the home between the back of an automobile?

Mr. Tribe: --Certainly, Justice Powell.

Mr. Tribe: And, a public toilet, of course?

Mr. Tribe: Certainly.

We would say that in--

Mr. Tribe: What about a hotel room overnight?

Mr. Tribe: --We think that a hotel overnight is not entitled to the same degree of protection, but, frankly, I do not know precisely where the line would be drawn.

For Fourth Amendment purposes, hotel room overnight gets full protection.

But, when this Court decided in Payton that one needs a warrant to enter a private home even with probable cause, it is not clear to me that that decision which reflected, as your concurring opinion in Rakas did, the sense that there is something special about a home, would automatically extend to a hotel room.

Mr. Tribe: I mentioned something special about a home in Moore also against East Cleveland.

You mentioned Poe against Ullman, but doesn't Justice Harlan in his dissenting opinion exclude sodomy when he was talking about the history of relationships?

Mr. Tribe: Justice Powell, I have been troubled by parts of the Harlan dissent in Moore which rather casually mentioned homosexuality, and for that matter abortion, in much the same breath.

The actual language that I think is operative at page 552 of the Harlan dissent is that he would not suggest... He says that

"adultery, homosexuality, fornication and incest are immune from criminal inquiry however privately practiced. "

We are not arguing for absolute immunity.

We are arguing for heightened scrutiny.

The Eleventh Circuit only held that when a law of this kind is challenged because of its intrusive invasion of personal liberty at the intersection of intimate association, on the one hand, and the privacy of the home on the other, the state must do more than appeal to the tautology that a majority of its legislators has approved.

Mr. Tribe: Mr. Tribe, can I ask you a little more about your second limiting principle.

Your first is the place.

The second, as I understand it, is that if the justification is to protect some state-sanctioned relationship it may be permissible.

Would it be permissible under your view for the state to prohibit conduct between... heterosexual conduct between males and females who are not married to one another and not married to anybody else in order to discourage that kind of conduct and sort of foster the marriage institution?

Mr. Tribe: I would think, Justice Stevens, first, that if they did that, strict or substantially heightened scrutiny would be required.

Second, I think that when the state makes the argument that it is necessary to illegalize extra-marital, completely non-marital sexual relations in order to put marriage on a pedestal, that under heightened scrutiny that argument would emerge rather dubious, the cause/effect relationship extremely dubious, as in Carey and as in Griswold when the argument was we want to outlaw contraceptives because indirectly that will make--

Mr. Tribe: What you are saying is that it would implicate your second limiting principle, but not carry the day.

Mr. Tribe: --Exactly, Justice Stevens.

Mr. Tribe: But, you say there is a parallel between that problem and the one we have before us today.

Mr. Tribe: I would say--

Mr. Tribe: One could argue that the reason for discouraging it is to encourage marriage.

Mr. Tribe: --If that argument were made on remand, but if the Court were to agree that heightened scrutiny is appropriate, it would certainly be a legitimate argument for the state to advance, unlike the tautology it advances here, we outlaw it because we don't like it, we think it is immoral.

It would be a legitimate argument, that this is a properly tailored means of encouraging marriage.

I would then submit that one would have responses along the line of Boddie v. Connecticut, the right not to be married.

It would then be a more finely tuned inquiry into whether the state's intrusion into so personal and intimate and private a realm was really a rationally, reasonably tailored means of achieving that end and I frankly doubt that it could be sustained.

But, at least the state would not be asking for the utterly opaque and unquestioned deference that it seeks in a case of this kind where it says that because the majority for a long time has disapproved of this conduct, we can make it a triumph.

If history alone were the guide... Surely, I have to conceded that the framers of the Fourteenth Amendment and perhaps Justice Harlan 25 years ago would have been prepared to assume that the kinds of sexual intimacies involved in this case would be outlawed.

But, then the framers of the Fourteenth Amendment assumed that the kinds of sexual... given the constitutional protection in Reed v. Reed and in Frantiero and in Stanton versus Stanton and in Hogan v. Mississippi University for Women also could be outlawed.

The law that they assumed would apply is the law that kept Myra Bradwell from being a lawyer--

But, as this Court recognized in Loving against Virginia, where also a majority of the people of Virginia believed that interracial liaisons were inherently immoral and where for a long time a lot of people had believed that, this Court did not think that the Constitution's mission was to freeze that historical vision into place.

Justice Harlan's dissenting opinion in Poe v. Ullman recognized the evolutionary character of the definition of those intimacies that are protected.

And, it seems to me that it would hardly be a suitable role for any court to decide its own catalogue of protected intimacies.

Mr. Tribe: Mr. Tribe, if this evolution is taking place, as you suggest, and you may well be right, why isn't it more proper for this Court to let it be reflected in the majority rule where, you know, states have repealed these statutes.

Mr. Tribe: Justice Rehnquist, we do think that that trend is at least relevant for the question of whether this is self-evidently evil.

But, this Court has never before held that when a personal right protected by the Constitution, just because those persons might be able to obtain political redress, the right no longer deserves judicial protection.

Indeed, in Justice Powell's dissent in Garcia, the suggestion was made that surely this Court would never say as to individual rights that the ability of individuals to possibly persuade a legislature to protect them is enough.

In Stanley v. Georgia, another case where Georgia wanted to impose its morality on the privacy of the home, the argument could have also been made most states have legalized private possession of pornography.

Mr. Tribe: But, I thought your argument suggested that 25 years ago, if that is the right time that Justice Harlan wrote his dissent in Poe against Ullman, perhaps these rights wouldn't have... the right that you are arguing for here, the right to commit sodomy, would not have been constitutionally protected, but now they are.

What has happened in 25 years?

Mr. Tribe: I do not think that if this case had been squarely presented before Justice Harlan that he would have decided to draw the line based on which body parts come into contact.

I think he would have recognized that the power of the state in a case properly presented, the power of the state to have its own catalogue of how you can touch someone else in the privacy of the home is limited.

Mr. Tribe: Then he just wrote that part of his dissent in a fit of absent-mindedness?

Mr. Tribe: No, I don't think Justice Harlan was capable of fits of absent-mindedness.

But, this Court's doctrine about advisory opinions recognizes that even the best justices are at their best when they have a genuine case or controversy before them.

And, I do think that we have one here.

I want to make some comment about the suggestion implicit in some of the questions, that the absence of frequent prosecution in cases like this, apart from how strongly it suggests the State of Georgia hardly has a compelling or important interest in vindicating this law, might also provide an avenue for avoiding a decision much as the Court found one in Poe versus Ullman.

It does not seem to me that that avenue is a plausible one here for several reasons.

After all, Mr. Hartwick was arrested.

Under this very arrest, he could still be prosecuted.

Under this arrest, he is subject to considerable restraint.

And, the state's undisputed resolve to enforce this law, at least in some instances, according to their own catalogue of where they think it is appropriate to enforce it if evidence comes to their attention.

That resolve is undiminished, especially since this is a facial attack on the law.

It seems to us that the nature of the harm that Mr. Hardwick suffers from having been arrested and being told he is a criminal and might be arrested again makes it very difficult to avoid decisions.

Mr. Tribe: You say it is a facial attack, Mr. Tribe.

I had thought it was only as applied in the home.

Mr. Tribe: Well, I suppose with every facial attack, Justice Rehnquist, there is some definition of the relevant universe.

There is no suggestion, for instance, that the part of this law which involves aggravated sodomy is under attack.

The argument, however, is that this law in its sweeping definition of intimacies in the home is unconstitutional and--

Mr. Tribe: But, you are saying when applied in the home.

I thought your response to Justice Powell was that a hotel room, back seat of a car, no.

Mr. Tribe: --That is correct.

We don't rely on peculiarities of the facts here, but we do say that it is only in the context of the home that the very powerful confluence of rights represented by the home and intimacy are involved.

Mr. Tribe: Well, then it is really not a facial attack on the statute I don't think.

Mr. Tribe: If you want to call it something else, that is not a problem.

In any event, it is important, I think, to recognize that he is not identifying something about his situation relevantly different from that of a married couple that might be prosecuted and saying that the law perhaps protects them but not me, but I am invoking their rights.

The argument he makes is that regulation of sexual intimacy in the privacy of the home by a law this sweeping is subject to heightened scrutiny and there is no severability clause in this law as there wasn't in Carey or Zablocki.

This is not, for example, one of the five states that outlaws sodomy only between people of the same sex.

So, it seems to us that what is before the Court quite clearly is the power of Georgia asserted through this statute to criminalize without explanation beyond the tautological invocation of the majority morality.

Mr. Tribe: Professor, what provision of the Constitution do you rely on or we should rely on to strike down this statute?

Mr. Tribe: The Liberty Clause of the Fourteenth Amendment, Justice White, as given further meaning an content by a force of decisions over half a century.

We think that as to the home the Third and Fourth Amendment--

Mr. Tribe: Which cases do you particularly rely on?

Mr. Tribe: --Well, we think with respect to the home dimension we rely heavily on Stanley, where the idea that it was a First Amendment right surely will not wash because, as the Court held, and, indeed, the very case they cite, 12 200-Foot Reels, there is no right to buy the material, no right to sell it, no right to show it to consenting adults in public, only a right to enjoy it in private.

With respect to the intimacy dimension, we rely heavily on Griswold and on Eisenstadt to show that Griswold cannot be limited to married couples.

And, with respect to both, we rely on the fundamental principle recognized in the concurring opinion in Kelly v. Johnson that important intrusions upon liberty are not to be upheld on a form of review so differential though it might be appropriate in regimented context such as the policy or military.

This Court has never held it appropriate in dealing with all citizens in the privacy of their home.

Mr. Tribe: How do you articulate this right or this process of declaring a... you say is a fundamental right or is it a... how should we go about identifying some new right that should give protection?

Mr. Tribe: Well, Justice White, I think that the method that this Court used in both Griswold and in Roe of looking to tradition in terms of the protection of the place where an act occurs and of looking to a tradition in terms of recognizing autonomous personal control over intimacy is an appropriate process to employ.

It seems to us that it is easier using that process to conclude that this case implicates a fundamental right and even to conclude it in Moore v. East Cleveland, because as the tradition of family is... In your dissenting opinion in Moore, I think it was an important point that it was not necessarily so crucial a matter for the society to ensure the right of grandmothers to choose exactly which grandchildren to live with.

Now, I think myself the majority was right in that case.

But, whatever you think about Moore, the long line of opinions cannot in any principled way be cut off at the particular triangle of rights in which the State of Georgia would try to encase this Court's precedents, marriage, family, and procreation.

If the entire line of decisions is not to be repudiated root and branch, it has to stand for some generalizable principle of the kind that the majority opinion in the Jaycees case endorsed where the Court expressly rejected the idea of a methodology that would proceed by specific categories unmentioned in the Constitution like marriage and family and in favor of the more functional approach that would look to the distinctively personal aspects of life that are being regulated in settings distinguished, as the Court put it, by solace, selectivity and seclusion.

Now, if liberty means anything in our Constitution, especially given the Ninth Amendment's proposition that it is not all expressly enumerated, if liberty means anything it means that the power of government is limited in a way that requires an articulated rationale by government for an intrusion on freedom as personal as this.

It is not a characteristic of governments devoted to liberty that they proclaim the unquestioned authority of big brother dictate every detail of intimate life in the home.

What sense would it make to say that the government cannot order its regiments in the home, if it could regiment every detail of life in the home.

What sense does it make to use the apparatus of the Fourth Amendment with the controversial exclusionary rule to protect the privacy of the home if the Constitution is insensitive to the substantive privacies of the life within the home?

It seems to us that if the protections of the Third and Fourth Amendments are not to be reduced to error and empty formalisms, that they have to reflect an underlying principle, a principle not unlike that which this Court recognized in decisions like Meyer and Pierce and more recently in Moore v. East Cleveland.

Those underlying principles, I think it is important to stress, do not place on a constitutional pedestal as though receiving this Court's particular approval, the particular acts involved in a case like this.

I think in that sense it is misleading to say that we are championing a fundamental right to commit a particular sexual act.

We are saying that there is a fundamental right to restrict government's intimate regulation of the privacies of association like in the home.

The principle that we champion is a principle of limited government, it is not a principle of a special catalogue of rights.

Robert Frost once said that home is the place, where when you go there they have to take you in.

I think constitutionally home is the place where when the government would tell you in intimate detail what you must do there and how to behave there, they have to give you a better reason why than simply an invocation of the majority's morality which tautologically would vindicate without any scrutiny by this Court literally every intimate regulation of everything one can do in the home.

It doesn't denigrate the special place of family and parenthood and marriage in our society to recognize the principle of limited government.

On the contrary, if there is something special and unique about parental authority it is that we do not cede to big brother the same unquestioned deference that children are perhaps supposed to give to their parents.

When the government would tell people in this much detail how to conduct their intimate lives and doesn't apparently have a good enough reason to keep Mr. Hardwich in something other than a limbo in which he could be prosecuted any time until August under this extraordinarily sweeping law, when it does that, it seems to us that it is fully respectful of history and tradition for the Eleventh Circuit to have said you owe Mr. Hardwick a better reason and you owe the people of the United States a better reason than simply unquestioned deference.

And, I think Justice Harlan, if the issue had been properly posed in Poe v. Ullman which, of course, didn't involve this, would have recognized that requirement of meaningful justification.

Even if you only call it rationality review, it is rationality review with meaningful content of the kind this Court recognized in the Cleburne case.

Mr. Tribe: Mr. Tribe, I am curious to know, you have referred to Justice White's opinion in Moore v. Cleveland.

Do you think that opinion helps you or hurts you?

Mr. Tribe: Oh, it certainly hurts more than it helps.

I was suggesting, however, that even that opinion... that even in that opinion there is room for some hope.

Your opinion in Moore v. East Cleveland is considerably more helpful, because in that opinion you talk about the meaning of private property which is also involved in this case.

What does it mean to say one's home is a private place if every detail of what one does there can be regulated by the state because they think it is an irresponsible liaison.

It seems to us that the very meaning of home is denigrated if that can be done.

It seems to us it is only a principle of limited government that makes it important to affirm the Eleventh Circuit's decision that heightened scrutiny is required in such a case.

Mr. Tribe: Let me ask you one other question which is really about Justice White's opinion which seems to assume that a law that has some impact on liberty must have some utility or... his exact line which is must have a purpose or utility.

Mr. Tribe: That is right.

Mr. Tribe: What is your understanding of the purpose or utility of the law of the state in this case?

Mr. Tribe: My understanding is that Georgia refuses to tell us other than to say that the acts involved we say are immoral.

Three times they say they are the definition of evil, although half the states have decriminalized them.

They refuse to advance a purpose or utility.

It is in that respect that even the form of review endorsed by Justice White's dissent in Moore which requires some meaningful explanation of how this law would function to advance the public welfare, why it wouldn't be counter-productive, why it wouldn't cause more contempt for law than respect for families.

Some explanation is required.

And, if one reverses the Eleventh Circuit's decision and allows the flat and unexplained dismissal of the district court to stand, the message of that is the state need not offer any explanation, no utility, no function.

It is enough to say we passed it, that means most of us thinks it is wrong and a lot of people have thought it was wrong for a long time, therefore, ask us no further questions.

Mr. Tribe: Well, Mr. Tribe, under your analysis what sort of explanation would be required?

You suggested that if the state were to assert its desire to promote traditional families instead of homosexual relationships would not suffice in your view and yet that is an articulate... potentially articulate reason.

Perhaps the state can say its desire to deter the spread of a communicable disease or something of that sort.

Mr. Tribe: Yes.

Mr. Tribe: Now, what suffices here?

Mr. Tribe: As to the first, if the State of Georgia were simply defending... Might I finish the answer to this question, Mr. Chief Justice?

If the State of Georgia were defending its refusal to sanction homosexual marriage, there would be a close connection between that and the first rationale.

The connection, however, would be so weak between this sweeping law and the rationale of endorsing or helping marriage that I doubt that would work.

As to avoiding the spread of communicable diseases, the American Public Health Association, at page 27 of the amicus brief, they think that this law and laws like it would be counter-productive to that end, but you don't even reach that issue until you have some kind of meaningful inquiry.

Surely, if a narrowly tailored law could be shown necessary to protect the public health, that would be a compelling justification, but Georgia offers no such justification here.

Limited government, we think, makes the Eleventh Circuit's decision correct.

Thank you.

Chief Justice Burger: Do you have anything further Mr. Hobbs?

ORAL ARGUMENT OF MICHAEL E. HOBBS, ESQ. ON BEHALF OF THE PETITIONER--REBUTTAL

Mr. Hobbs: The State of Georgia is not acting as big brother in this particular case.

It is adhering to centuries-old tradition and the conventional morality of its people.

Certainly, it cannot invade the privacy of the home and regulate each intimate activity which takes place there.

Each statute enacted by any state must be rationally related to a legitimate government purpose and it is submitted most respectfully to Mr. Tribe that this statute is related to the legitimate purpose of maintaining a decent and moral society.

It is inherently intertwined with the state's concern with the moral soundness of its people.

Just a couple of comments.

The State of Georgia in its official code does have a general severability statute and that should bear on the issue here before the Court.

In summary, the liberty that exists under our Constitution is not unrestrained.

It is ordered liberty, it is not licentiousness.

If the Eleventh Circuit's decision is affirmed in this case, the State of Georgia and other states will be impeded for making those distinctions between true liberty ordered liberty, and licentiousness.

Thank you very much, Mr. Chief Justice.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Nixon v. Warner Communications, Inc. - Oral Argument

Sun, 08 Aug 2010 19:14:25 +0000

Case:

Nixon v. Warner Communications, Inc.

Media File:

76-944_19771108-argument.mp3

Related Transcript:

76-944_19771108-argument.xml

Transcript:

Argument of William H. Jeffress, Jr.

Chief Justice Warren E. Burger: We will hear arguments first this morning in 76-944, Nixon against Warner Communication and others.

Mr. Jeffress.

Mr. William H. Jeffress, Jr.: Mr. Chief Justice and may it please the Court.

The tapes that are involved in this case were those that were produced following this Court’s decision for use as evidence in the Watergate trial.

The question in the case is whether the tapes having served their purpose as evidence in that trial will now be distributed by the clerk of the District Court to members of the public for broadcast, for sale and for whatever other uses that members of the public may wish to put them.

The case started when just prior to the Watergate trial, three news reporters requested Judge Sirica to provide copies of the tapes as they were played to the jury during the trial.

Judge Sirica sought the guidance of the chief judge who consulted other members of the District Court.

It was a consensus of those judges of the District Court that while the ultimate decision ought to be left to the trial judge, providing copies of the tapes to the media would appear first to be inconsistent with the Court’s rule against the broadcast and dissemination of the recording via court reporter of trial proceedings and second, it was the consensus of the judges that dissemination of the transcripts to the public would appear to constitute more than adequate disclosure of what the tapes contain.

Judge Sirica agreed with that consensus and denied the request.

A few weeks later, but still during the trial, formal applications were filed by the respondents in this case to obtain copies of the tapes.

Those applications were assigned to Judge Gesell of the District Court and were opposed by Mr. Nixon.

The clerk of the Court filed an affidavit at the request of Judge Gesell which discussed the feasibility of reproducing the tapes that were played to the jury.

The clerk noted that portions of the tapes even of the Court copy of the tapes still remained confidential, that not all of the copy in the custody of the Court had been played to the jury.

He concluded though that with sufficient technical assistance and sufficient time, it would possible to reproduce a set of the tapes played to the jury that would be suitable for dissemination to the applicants.

On December 5, Judge Gesell entered a memorandum opinion and order in the matter.

He rejected the constitutional claims of the applicants based on the First Amendment, but he did find that there was a practice which he felt was supported by cases of Common Law and by the manual for District Court clerks which supported the claim of the respondents of a right to copy the tapes.

He rejected Mr. Nixon’s position that the tape should not be provided for broadcast under any circumstances.

But he reserved decision on the application, pending the submission of a plan which he felt should number one, show that it would not impose an undue burden on the clerk to make and disseminate the copies and number two it would guarantee that there would be no in his words, over commercialization of the evidence.

Justice Potter Stewart: Mr. Jeffress, during these proceedings, the trial was still going on in Judge Sirica’s Court, was it?

Mr. William H. Jeffress, Jr.: During all of the proceedings that I have described so far, the trial was still going on and Judge Gesell’s December 5th opinion was entered before the trial was completed.

The plan however of the respondents for dissemination of the tapes was submitted in late December and by January 8 when Judge Gesell ruled on the applications, the trial was concluded.

Judge Gesell denied the applications without prejudice.

He stated and again I use his words that it was a prerequisite of any plan that commercialization of the tapes or any undignified use be minimized.

He felt that no basis for distribution of the tapes that met this goal or that took the burden off the shoulders of the clerk had been submitted.

After Judge Gesell’s decision, the applications were transferred back to Judge Sirica who by this time was free of his trial duties.

After a hearing and obtaining further submissions form the parties, Judge Sirica entered an order which also denied the applications without prejudice.

Judge Sirica like Judge Gesell noted that in his opinion, there were many obstacles that must be overcome before any release of the tapes might be made.

But the sole issue considered by him at that time was the question of timing of any such release.

Judge Sirica felt the special qualities of the tapes and the uses that undoubtedly would be made of them should they be released, warranted withholding any dissemination of copies or any decision on whether to disseminate copies until the Appeals Court decided whether retrial could be necessary in the Watergate case.

In the Court of Appeals, by the time the case was decided, the convictions in the Watergate case except for that of Mr. Mardian had been affirmed.

The Court of Appeals, however, decided to rule on the ultimate question in the case, that is whether the tapes ought to be provided for broadcast and sale at all.

Justice William H. Rehnquist: Mr. Jeffress, you said the ultimate question, but it may not be the ultimate question in the case is varied depending on the stage of other proceedings in the Courts involved?

Mr. William H. Jeffress, Jr.: Your Honor if I understand your question, what I meant by the ultimate question in the case, was whether the tapes, given present circumstances, ought to be disseminated to the press and to members of the public.

Nothing has happened since that time to change at least what the Court of Appeals stated to be the basis for its conclusion.

Now the Court of Appeals decided that there was a Common Law right of access to judicial records that encompassed the right to obtain copies of these tapes.

It held that the burden was in Mr. Nixon to establish that justice required making an exception to that Common Law principle and third, it concluded that no such showing had been made.

The Court said that Judge Sirica had abused his discretion and withholding any decision on release of the tapes until the Watergate appeals were decided and paradoxically because Judge Gesell had actually denied the applications, the Court characterized his decision as one in essence affirming his exercise of discretion.

If the Court please, preliminary, I would like to deal with a theme that runs throughout the opinion of the Court of Appeals and the arguments of the respondents in this case.

It said that the tapes are items of extreme historical importance.

It said that there is an enormous public desire to hear them.

It said the broadcast and providing these tapes to the public will make the public better acquainted with our content and the public is and can be now having access only to the transcripts.

We do not take issue with those three propositions, but we do say that they are not properly addressed to a Court.

The Court has no authority, no power generally to decide what property, whether in the custody of the government or anyone else ought to be broadcast and these tapes are in the Court’s custody solely by virtue of subpoena and solely for use as evidence in the Watergate trial.

Justice William H. Rehnquist: Do you say then that even under this Court and the Court of Appeals and the District Courts, presume the housekeeping authority to decide what shall be done with exhibits until they are returned or exhibits that may not be the property of any one individual, it would not have the authority to grant the request of these respondents?

Mr. William H. Jeffress, Jr.: Certainly, Your Honor, the Court has control of the exhibits and has authority to do with them anything that is necessary to fulfill the purpose for which they are in the Court’s custody.

It is our position that the relief that is sought here, the effect of releasing them for broadcast is not to serve those purposes and at the interests that are retained and material that is under subpoena should preclude the Court from making that sort of use of the materials.

Unknown Speaker: Would you feel otherwise if these items have not been subpoenaed?

Do you conceive that then there would be a right to reproduce the tapes as tapes as distinguished from reproducing their contents?

Mr. William H. Jeffress, Jr.: I do not at all Your Honor.

Number one, you would have the case of for example wiretap conversations.

The person whose voice is wiretapped or is recorded in the course of a wiretap does not own the tape on which that recording is made, but nevertheless, it seems to me that the same considerations that we are arguing here this morning would apply to that and that the Court should not make public broadcast and public release of that tape recording.

Justice William H. Rehnquist: But it seems to me that the releasing Court is not deciding as to the propriety or the action ability of the use that may be made of the tape after its release.

It is simply authorizing the copying of something that is in its custody.

If the people who get it out of the custody, use it in a manner that infringes someone’s right of privacy, it may be actionable, but is that a decision that ought to be made by the Court that simply has custody of it?

Mr. William H. Jeffress, Jr.: It is your Honor for this reason.

The Court has to make the decision as to whether to provide tapes of its own proceedings or tapes that it obtained from private parties to the public or to the broadcasters with knowledge of the uses that are going to be made of them.

This Court’s decisions and one thing we do recognize is that this Court’s decisions under the First Amendment would seriously limit any use, any suit by Mr. Nixon, any suit by any other party to prevent broadcasters from using the items that come into their custody that are released by the Court in any matter they might see it fit.

So the only point at which the uses can be controlled is the point at which it is decided whether to put them in the hands of the broadcasters, whether to put them in the hands of the record companies.

Justice William H. Rehnquist: But it seems to me, that really puts the cart before the horse, it puts all the constitutional freight really on the custodial court rather than it seems to me, it might be much simpler to just look at this as a problem of custody, copying by Joe Dokes or by NBC of something that is in custody and let the subsequent transactions in connection with the tape carry the constitutional freight?

Mr. William H. Jeffress, Jr.: Your Honor as I said, number one, our claims do not rest on a constitutional right of not to have the tape disseminated, but as for the subsequent uses that might be made, whether we have a right of privacy or a right of copyright or some cause of action in a Federal Court or in a State Court to prevent those uses is an entirely separate question from whether the Court having obtained property from an individual for limited uses might provide that to other people knowing that those other people, members of the public are going to make uses that are going to be offensive to the person from whom the property was obtained.

Unknown Speaker: Why would you not say the question is whether the Court can make them avail it to another person for any purpose?

Because if you go on and say for obnoxious purposes then the Court really is going to have to distinguish between one use from another?

Mr. William H. Jeffress, Jr.: Well, certainly for the Court and we do not think it would be unconstitutional for the Court to provide a copy to a person who agrees and signs an agreement that he would really use them to listen, for research.

That he would not disseminate them to other people.

Unknown Speaker: You mean what privacy interest that you assert would not be invaded by that or what property interests would be invaded by that?

Mr. William H. Jeffress, Jr.: Well, certainly not as much.

Justice John Paul Stevens: Could I make sure of one thing?

What is at issue here, the underlying tapes that were filed or is it just the composite that was made by the Court?

Mr. William H. Jeffress, Jr.: I think it is fair to call it a composite.

What happened was Judge Sirica received the underlying tapes and excluded those things that were not relevant and were not admissible and produced what we call a Court copy of the tapes.

Justice John Paul Stevens: Well, it is not a Court copy, it is an extract and are the original tapes involved at all?

If you lose this case, will the underlying tapes be covered by the judgment, what do you know?

Mr. William H. Jeffress, Jr.: Well, certainly the copies are nothing but the underlying tapes and the only thing that the respondents have claimed in this case, they do not really claim a right to a copy of the entirety of the Court copy, the trial copy of the tapes.

As I have said, that trial copy contains many conversations that are still confidential.

So there is nothing, actually, the item that the respondents claim a right to copy does not now exist.

They ask that that item i.e. the tapes of all the conversations that were played to the jury be produced.

Justice Potter Stewart: Is that the only thing that is involved?

Is the extract that was played to the jury?

Mr. William H. Jeffress, Jr.: The extracts, that is correct.

It is about 22 hours conversation.

Justice Potter Stewart: That running tape that was made of the extracts, but the tapes or the copies from which that jury played tape was made is not involved here?

Mr. William H. Jeffress, Jr.: Copies could have well been made from those tapes as from the Court copies, but the plan is to make the copies for dissemination.

Justice Potter Stewart: I am still not sure that you have answered my question.

Chief Justice Warren E. Burger: What is involved is the 22 hours of electronic transcription that were introduced as evidence in the trial before Judge Sirica, is that not correct?

Mr. William H. Jeffress, Jr.: That are contained in the Court copy of the tapes.

You understand that no separate recording was made of those 22 hours.

The machine was there, the special prosecutor turned it to the place he wanted and played it during the trial.

Chief Justice Warren E. Burger: And that is the material that would take seven man days to reproduce?

Mr. William H. Jeffress, Jr.: That is correct.

Even the process of reproducing these tapes required in the District Court of approximately a three-page order.

Justice Byron R. White: Is it perfectly clear that the portions of the tapes that were not played to the jury, are not involved here?

Mr. William H. Jeffress, Jr.: The respondents do not claim a right to them, Mr. Justice White.

Justice Byron R. White: Why would they not have a right to them, they are in the custody of the Court, they were subpoenaed?

Mr. William H. Jeffress, Jr.: We submit that their argument would seem to establish that they would.

They, however, appear to concede that those conversations are confidential.

Justice Byron R. White: (Voice Overlap) why they concede that?

Mr. William H. Jeffress, Jr.: That is correct.

Justice William H. Rehnquist: There is no property at this point or is there because the Congress in effect condemned the originals and under the Act we construed last spring?

Mr. William H. Jeffress, Jr.: But if the Court recalls, the Court did not rule on the actual titles of the tapes, but as the Court will also recall, Mr. Nixon had claimed a title to those tapes.

Unknown Speaker: But issue though, do you not?

Mr. William H. Jeffress, Jr.: We still do.

Justice William H. Rehnquist: If Mr. Nixon did have title to those tapes, Congress is provided just compensation for them in that Act, so he would have no property claim in this case?

Mr. William H. Jeffress, Jr.: No, issue in the case depends on whether he has title to the recordings or not.

As I have said before, if these were wiretap recordings, the same issues would be present or if they were subpoenaed from my custody and they might belong to my brother-in-law or whatever, I do not think that that would control any issue that is presented in this case.

Justice Lewis F. Powell: Mr. Jeffress, who in general were parties to these conversations in addition to the President?

Mr. William H. Jeffress, Jr.: The President and his closest aides would summarize it generally.

The conversations primarily concerned Mr. Nixon and certain members of the Cabinet and certain members of the White House staff.

Justice Lewis F. Powell: Are any parties recorded in these tapes who were not associated with the White House?

Mr. William H. Jeffress, Jr.: There are parties who were recorded on the original recordings that are in Judge Sirica’s custody.

If I recall correctly, there are not any portions that were actually played to the jury that involved such persons.

Justice Lewis F. Powell: Mr. Jeffress, your arguments being recorded on that machine over there, are you suggesting there is any limitation on this Court from releasing the tape of your argument to the media or anyone else?

Mr. William H. Jeffress, Jr.: Well, if the Court please, it is my understanding that the Court does impose certain restrictions on release of the oral arguments --

Justice Lewis F. Powell: That was not my question.

Are you suggesting that there are limitations in our power to release the recording of your argument?

Mr. William H. Jeffress, Jr.: No, I do not think so Your Honor.

Justice Lewis F. Powell: How is this any different from the recordings we are talking about?

Mr. William H. Jeffress, Jr.: The recordings we are talking about are not the property of the Court.

They were obtained by judicial process for a limited purpose from Mr. Nixon.

There are reasons we would submit why Courts do not and should not allow the broadcast of recordings made of judicial proceedings, but at the least, those recordings are the Court’s recordings.

They are recordings that the Court has the absolute power to do with as they please.

Chief Justice Warren E. Burger: We could release them if we decided to do so for playing on the 6:00 news tonight as occurred or 7:00 news whenever it comes on, is that right?

Justice Byron R. White: We are still drawing the distinction between the transcript which is readily available to any attorney and the original tape with all the voice inflections and everything else.

Mr. William H. Jeffress, Jr.: Certainly, Your Honor, we submit that the Court of Appeals decision that the Common Law Right involved a right to copy tape recordings in the custody of the clerk is inconsistent with the uniform recognition by the Courts up to this time that a tape is different from a transcript and I might point out --

Justice Lewis F. Powell: But you do not make that distinction as to your own argument here.

Your argument is being recorded.

That will also be transcribed and there will be a transcript of it after this argument.

Do you still suggest that there is no limitation in our power to release the voice recording with all its inflections and every thing else to the new media for broadcast tonight if they wanted?

Mr. William H. Jeffress, Jr.: But if the Court please --

Justice Lewis F. Powell: You do not?

Mr. William H. Jeffress, Jr.: No, I do not contend that, but if the Court please, where you have wiretapped conversations, where you have privately recorded conversations that are obtained by judicial process, you have a different kind of animal than you have in a recording that a person makes with expectation that it is being made in public discourse with an expectation that it is even being made over television.

It is not unusual for participants in private conversations to speak irreverently.

Justice Thurgood Marshall: Was that not all lost, once they were played in Court?

Mr. William H. Jeffress, Jr.: No, Your Honor, it was not.

Justice Thurgood Marshall: Was it lost to 12 people, the 12 people on the jury heard it?

Mr. William H. Jeffress, Jr.: But we have said Your Honor and contend --

Justice Thurgood Marshall: But you do not think that means anything?

Mr. William H. Jeffress, Jr.: I do not think that it means --

Justice Thurgood Marshall: It is no longer private, is it?

Mr. William H. Jeffress, Jr.: It is no longer private.

The only thing --

Justice Thurgood Marshall: Well, then what are you are arguing, limit it?

Mr. William H. Jeffress, Jr.: We do not argue that there is an interest in confidentiality per se that still maintained as to these things.

We do argue that there is a legitimate interest, an interest of the Court may respect and an interest of the Court should respect in a person whose private conversations are recorded and which contains the same sort of language, the same sort of discourse that would be expected --

Justice Thurgood Marshall: It has all been released to the “public?”

Mr. William H. Jeffress, Jr.: It has been heard by certain members of the public.

It has not been released to every disc jockey, every entertainer for the television networks to be played on television, to be relentlessly --

Justice Thurgood Marshall: Would there be a difference in the Courtroom with 12 people, the Courtroom that held 200 people, would it be more public?

Mr. William H. Jeffress, Jr.: No, I do not believe it would be played in a setting that is its very purpose, the very purpose for which the tape will be produced.

It would be played to do justice in a criminal proceeding.

That is the purpose for which the tape recordings were ordered and produced.

Justice Thurgood Marshall: That is the reason that the respondents want to reproduce it for the public?

Mr. William H. Jeffress, Jr.: They want to have it --

Justice Thurgood Marshall: In a larger public?

Mr. William H. Jeffress, Jr.: Well, they want it to have it in form where it can be played in any manner that they think appropriate.

Broadcasting television that is the purpose of some of the respondents, others of the respondents say they would like to provide it for home use, for library use for scholarly purposes, but the fact is that once released, the point I was trying to make --

Justice Thurgood Marshall: But my point is, it has already been released?

Mr. William H. Jeffress, Jr.: It is not Your Honor been released in the sense that copies had been provided for these uses.

Now we submit that in these private conversations that are recorded whether wire tap or otherwise, it is one thing.

It is going to be embarrassing to the participants.

It is going to cause them pain for those conversations to be disclosed, for those conversations to be printed in transcripts and disseminated.

Justice Lewis F. Powell: Mr. Jeffress I do know there are some states that televise trial proceedings and probably this had been a televised trial so that the recordings that are at issue here had been broadcast in the course of the trial, would you still be making the argument hereon?

Mr. William H. Jeffress, Jr.: Yes, Your Honor we would and interestingly enough where the, at least the kind of judicial ethics permits the televising Court proceedings, it requires a consent of the witnesses and of the parties and of the counsel, which is essentially a waiver, a decision that, that sort of intrusion of their privacy ought to be made.

Chief Justice Warren E. Burger: But this Court has never had any occasion to decide whether a defendant can refuse or a witness can refuse to appear if the proceeding is broadcast, has it?

Mr. William H. Jeffress, Jr.: No Your Honor, I do not believe it has.

Unknown Speaker: The Estes case was at close at hand?

Mr. William H. Jeffress, Jr.: Estes case will be the closest, but that was a matter of due process to the defendant.

Justice John Paul Stevens: Mr. Jeffress may ask you a question about how to go about deciding this case.

I gather you would agree that in some instances it is appropriate to permit public copying and access to exhibits and others it is not, depending on the impact on the privacy of the witness or the person producing the exhibit.

I think that is implicit in your argument.

If that is true how is the one to decide whether or not to release something like this without hearing it and that then leaves the question should we not have some kind of obligation to defer to the District Court which has heard these materials which we have not heard.

Mr. William H. Jeffress, Jr.: Well, I would like to make two responses to that Mr. Justice Stevens.

First I do not think you interpret my argument correctly when you assume that it is a matter involving the balancing of particular privacy interest in a particular case against whatever needs the public asserts for the materials where an subpoenaed exhibit that is not the property of the Court comes in to the custody of the Court, we submit that the Court should not as a policy matter make those available beyond the issues for which they were subpoenaed.

None of the authorities recognized that the Court has any such power, not the manual for District Court clerks, not any of the common law cases.

The second response that I would like to make to that Mr. Justice Stevens is that in this particular case no District Judge has exercised this discretion even if it is a matter of discretion to make release of the recordings.

Now, as to exhibits, if an exhibit is obtained, the question raises is there a distinction between documentaries and take the exhibits that come into the custody of the Court under a subpoena.

Even if the documentary exhibits --

Justice John Paul Stevens: May I just stop you for a moment?

You say the general rule is that no copying is permitted except in exceptional circumstances because Judge Gesell certainly thought the law was to the contrary?

Mr. William H. Jeffress, Jr.: Judge Gesell found a practice in the District Court of the District of Columbia that exhibits were routinely made available for copying, subject to contrary directions by the trial judge.

As far as we are aware no instance could ever have risen where there, number one anyone had actually copied the tape recorded exhibit or number two anyone had copied any exhibit obtained from a private party over his next --

Justice John Paul Stevens: Is it different for tape recordings and for any other document or pictures or anything like that, should you have a general rule to find all exhibits?

Mr. William H. Jeffress, Jr.: We submit that there are reasons for a distinction, but we do contend that there should be a general rule for all exhibits.

If a party for example under subpoena produces a photograph and there are reasons why that person who has the entire power to control what is done with that photograph except for the subpoena, there are reasons to respect that person's wishes if he should make a request that that document not be provided for showing on television or in newspapers.

Justice Thurgood Marshall: Well if that is true, why do you make a motion to seal the record?

That is the exception, not the rule, is it not correct, sealing the record is exception and not the rule?

Mr. William H. Jeffress, Jr.: Sealing the record is the exception, but --

Justice Thurgood Marshall: Then why do you do that if it is already sealed?

You said it is already sealed, you cannot copy it.

Mr. William H. Jeffress, Jr.: The party could make a request for sealing of the record, but I might point out --

Justice Thurgood Marshall: Do you mean if you are go into the clerk's office and say I want to see the exhibits and said that is a case, they just hand it to you and you are allowed to copy them?

Mr. William H. Jeffress, Jr.: They do not Your Honor.

They do not in most jurisdictions.

There are three rules in fact, actual rules of District Court that prohibit that except to the party’s to the case.

If the Court please, I would like to reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well Mr. Jeffress.

Mr. Abrams.

Argument of Floyd Abrams

Mr. Floyd Abrams: Mr. Chief Justice and may it please the Court.

I would like to start by trying to be as clear as I can about precisely what the tapes are that are involved here and the degree to which they have already come into the public domain.

Some of these tapes are subpoenaed by a Special Prosecutor Cox in 1973 and after the Court of Appeals ordered them to be turned over by Mr. Nixon and after Mr. Cox’s dismissal, they were turned over.

Others were subpoenaed by Special Prosecutor Jaworski and after this Court’s ruling in 1974, they were turned over.

Now, with respect to the tapes involved here, we do not deal with any other than those introduced as exhibits in the Mitchell trial.

All were heard in open Court and be overheard not just by the 12 jurors, Mr. Justice Marshall, but everyone in the Court because everyone that came into the Court was provided with earphones so that they could be heard by everyone.

The computation in this case is that something in order of 1,300 individuals heard some or all of the tapes.

So everyone in the Courtroom heard everything that is at issue in this case and all of the tapes had been printed.

As Mr. Nixon’s brief correctly states all of the tapes.

The transcripts of them continue to be available around the country for public reading and reflection.

Unknown Speaker: That is the printed transcripts?

Mr. Floyd Abrams: Yes sir, all the printed transcripts are available.

What has been missing from public is what we came to Court to seek, provided the public not present in Court to hear the tapes that everyone in Court heard.

There is no question here about the ability to reproduce these tapes without destroying the original tape from which they were made.

The clerk of the Court so stated in his affidavit and we have not heard anything contrary from Mr. Nixon nor is there any issue as to Mr. Nixon seeking the return in any sense of these tapes.

As the reply brief submitted to this Court last week explicitly disclaimed any effort on his part to get these tapes back from the clerk, page 17 of his reply brief and the league of issues as we see that are before this Court are relatively narrow, but before I reach them, I would like to be very clear as to what Judge Gesell held in his opinion or which the Court of Appeals correctly stated it was as it were affirming.

Judge Gesell’s first opinion only opinion as it was in this case said in so many words that the tape exhibits are in evidence, I am quoting now, and have therefore come into the public domain and the public should have the chance to hear them.

Mr. Nixon’s opposition was denied by Judge Gesell.

Judge Gesell to be sure required us to formulate a plan for distribution of the tapes and a plan which would avoid certain commercialization and the like.

We submitted the plan, it was rejected by Judge Gesell.

Judge Sirica then held a hearing and refused to --

Justice Harry A. Blackmun: Why was he concerned about commercialization if it is open why not commercialize it?

Mr. Floyd Abrams: Mr. Justice Blackmun, I think he was improperly concerned about commercialization after the initial distribution of the tapes.

I think he was quite within the Court's providence to say that in the first instance when the tapes were to be reproduced, that is to say a master tape made and initially distributed to the public, I think it was proper at least we take no quarrel to the proposition, but after that he can properly say that the Court should say that there should be no commercialization.

The only problem that we have in Judge Gesell’s opinion is that he may have inferred, we do not think he did in his first opinion and Mr. Nixon said we did not think he did in his first opinion, he may have inferred that after the tapes were out to the public that there were constitutional limitations which could be placed on a fuse.

In so far as Judge Gesell did believe that, we think he was incorrect.

Justice William H. Rehnquist: Do you have any quarrel with Judge Gesell’s suggestion that whatever plan that you came up with, you had to pay for the time or clerk of the Court and that you could not just turn the Court into an Annex of CBS in order to get the tapes?

Mr. Floyd Abrams: We had no problem with that at all Justice Rehnquist.

Indeed we have now submitted to the Court a plan which would take everything off the Court’s hands under which the National Archives will take full responsibility for the making of the tapes and the distribution of the tape to the public at minimal cost.

We do not need and we do not seek any aid from the Court here at all, save the ability to have these tapes reproduced by the National Archives and then distributed generally to the public.

Justice Byron R. White: Mr. Abrams, how about my question to Jeffress on the parts of the tapes of the original tapes or the parts of the copies of the tapes that were not played to the jury?

Mr. Floyd Abrams: They are not involved here Mr. Justice White.

We have taken the position in this case that all we are seeking are Court exhibits.

Those materials which Judge Sirica received which was not admitted into evidence, we have made no claim for in this case, they have never been made available generally to the public, they were not heard in open Court.

Justice Byron R. White: But they were subpoenaed?

They were lodged in Court and they are still there, are they not?

Mr. Floyd Abrams: They are in Court, but they are not public records.

They are in Judge Sirica’s vault as it were and there under a protective order.

Justice Byron R. White: So are the tapes you are after they are in his vault?

Mr. Floyd Abrams: Yes sir.

Justice Byron R. White: And the question is whether they are public records?

Mr. Floyd Abrams: Yes.

The question of whether they are public records --

Justice Byron R. White: So how do you distinguish between the two, the parts that were played to the jury and the parts that were not?

Mr. Floyd Abrams: Because the parts we seek are Court exhibits.

The parts we seek were played --

Justice Byron R. White: You mean they were admitted, in the evidence?

Mr. Floyd Abrams: They were admitted into evidence.

Justice Byron R. White: Is that all as far as you go on exhibits?

Mr. Floyd Abrams: That is all we are seeking Your Honor, yes.

Justice Byron R. White: Does your theory only go that far?

Mr. Floyd Abrams: Our theory goes this far.

We think the Court of Appeals was correct in saying that as a general matter materials held by the Court are available to the public, as a general matter at least in the context where they are Court exhibits and admitted into evidence.

There is a material to be sure, a grand jury for example, we are told, the material is submitted to a grand jury that is not by any one standard public information and we do not seek any such information.

We do not take the position in this case Mr. Justice White that we are entitled to everything that finds its way to Court in some fashion or another and we accept the proposition of the Court of Appeals that there are situations in which things even when introduced in evidence may not be made publicly available for one reason or another.

Of course if it is introduced --

Justice Byron R. White: What we seal?

Mr. Floyd Abrams: If it is contraband for example.

If it is for example pornographic literature, if it is subject to copyright laws --

Justice Byron R. White: How about the copyright laws?

Suppose it was a copyrighted material that was introduced in the evidence?

Mr. Floyd Abrams: There is a case law which we believe is correctly decided at the lower Court level indicating that copyrighted materials introduced in evidence may not be reprinted certainly without violating the copyright law as to whether they maybe obtained and presumed as Justice Rehnquist’s question earlier, obtained and where one could print as it were and take ones chances that maybe.

We would not even object to a rule and we do not even go so far in this case as to urge a rule which would routinely allow anyone to walk in and get a hold of the copyrighted material in that sense.

Justice Thurgood Marshall: Even at trademark and copyright cases, where even the pleadings are secret and are sealed, even the pleadings?

Mr. Floyd Abrams: Absolutely, and if --

Justice William J. Brennan: What about the question I put to your colleague, this Court may impose limitations on the distributions of the recording of you argument today, eliminate particular purposes and particular groups and deny it through CBS or the news media generally if we want to?

Mr. Floyd Abrams: As you understand it is a delicate question for me Mr. Justice Brennan?

Justice William J. Brennan: Maybe (Voice Overlap) --

Mr. Floyd Abrams: I certainly think that there is a vast distinction between any limitations placed by Courts including this Court on the use of argument or trials or the like then there is --

Justice William J. Brennan: But which way was it cut, we can or cannot?

Mr. Floyd Abrams: You have more authority in my view, under authority such as the Estes case to limit the public dissemination of the tape of this argument then would be the case of an exhibit filed in this Court, which I would urge upon you is more generally available.

Chief Justice Warren E. Burger: You say more authority, you do not -- that does not sound as though you concede we have cleaner, total and final authority, do you?

Mr. Floyd Abrams: Your Honor I do not deny for the moment that you have complete authority to do that.

In giving an answer to Mr. Justice Brennan’s question, what I was attempting to urge was that it would give me a lot of constitutional qualms if you were to limit the accessibility to Court exhibits in this very courthouse.

I could not deny that you could do it, but it would seem to be inconsistent with many years of American practice.

Chief Justice Warren E. Burger: I am talking about perhaps because you get them before they got here?

Mr. Floyd Abrams: Yes, and if other Courts were to do the same thing I would make the same argument today.

Justice William H. Rehnquist: I am not sure how my brother Brennan reacts to your answer to his question, but it seems to me a perfectly good answer, exactly the opposite to which you gave could be made that an exhibit furnished by a third party and simply drawn into Court by judicial process, perhaps ought to have more protection from dissemination than the proceedings of a public body that are pursuant to rule and that do not involve any unwilling participation by a third party?

Mr. Floyd Abrams: Justice Rehnquist, I cannot be put into position of disagreeing that the constitutional arguments for limiting dissemination of the arguments here are very weak.

I think that there is a strong constitutional case to be made for having a public disclosure as is possible of this very proceeding.

I take it the reason that it is not made available are the kinds of reason that regarded to Estes case, the possibility of inhibiting counsel affecting the dignity of the Court proceedings.

Our position is you can inhibit an exhibit, but there is nothing in what is involved in this case which is analogous.

Justice William H. Rehnquist: Why do you get to a constitutional question?

Is it not both cases basically are housekeeping question of what a particular Court is going to do with material that happens to be physically in its possession?

Mr. Floyd Abrams: The housekeeping matter Justice Rehnquist, it does seem to us to have long standing roots that the Court of Appeals said that as a general matter Court copies maybe made of things held in Court subject to exception and subject to abuse, but that as a general proposition Court records are available to be inspected by the public and copied by the public.

Unknown Speaker: Would you go so far as to say that the constitution requires this Court to maintain that taping process or whatever?

Mr. Floyd Abrams: If the taping of this proceeding Your Honor?

No, I would not your Honor.

It seems to me that --

Unknown Speaker: So we could do away with it and not violate the constitution?

Mr. Floyd Abrams: I think so Your Honor.

Justice Byron R. White: Do you claim a constitutional right to get these tapes?

Mr. Floyd Abrams: We do make a constitutional argument Mr. Justice White.

We do argue that in pursuant to the Cox Broadcasting case or at least pursuant to the same theory of the Cox Broadcasting case which has not in this case that there is a lot more --

Justice Byron R. White: Cox did not hold that?

Mr. Floyd Abrams: I am sorry?

Justice Byron R. White: Cox did not go that far?

Mr. Floyd Abrams: No sir it did not and I do not need to suggest that it did.

It is our position in this case that if Cox is correctly read as I do we are saying that the advantage to the public and the wide spread dissemination of information even as offensive as a name of a rape victim and that the privacy interest in the father of a rape victim can be overcome and must be overcome because the information is contained in a Court record.

But by parity of reasoning in this case, Court exhibits introduced in evidence, not to say these Court exhibits introduced in evidence, should be made public.

Unknown Speaker: Well, short of a constitutional argument, what are your arguing?

Mr. Floyd Abrams: Short of a constitutional argument we argue as to the Court of Appeals that there is a long standing common law practice and right to make copies of Court documents and to make copies of Court exhibits that this right is not an absolute right, that it has exceptions to it that none of the potential exceptions to it ought to be applied in this case and indeed there is a very significant argument to be made in favor of release of these tapes.

I would put it this way, Justice White.

We think that even if the Court of Appeals had adopted an opposite test, the presumption against release of information such as this instead of one placing the burden on Mr. Nixon, we think we could meet that test in this case.

We think in this case, there is such a public interest and there is such a pubic utility in having these tapes made available that even if the presumption were against us, we could meet it.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Mr. Williams.

Argument of Edward Bennett Williams

Mr. Edward Bennett Williams: Mr. Chief Justice and may it please the Court.

I think it would be useful if I spent just a couple of minutes if the Court please, identifying what I conceive to be the non issues in this case which have been raised as questions in the Courts below in the tortuous journey of this case over three years to this courtroom.

First of all, the peg to which Judge Sirica latched his memorandum and order is now moot.

There are no more prospective defendants, no more prospective trials, and therefore, no more prospective prejudice.

Secondly, we are not here contending that in every single instance, there is a right to inspect and copy and distribute every exhibit that goes into a courtroom in the trial of a case.

We recognize that in the exercise of discretion of the trial judge, there may be instances where he will deny that right where there are property rights involved, where there are illegal wiretaps which are offered in evidence, where in a wiretapping criminal case, for example or where there is a contraband offered as part of the prosecution's case in a criminal trial.

Unknown Speaker: Do you think in other words, it is pretty much in the trial judge’s discretion?

Mr. Edward Bennett Williams: I think there is an exercise of discretion here for the trial judge, Mr. Justice Stewart.

We are not here assailing the traditional rules of Court which preclude access and distribution of the tape recordings of trials or indeed of appellate arguments.

We are not here making that assault.

Unknown Speaker: Mr. Williams, would it be a valid reason for a trial judge to deny the right to copy if he felt that the material would be embarrassing to a witness and might discourage future prospective witnesses from wanting to come forward and testify in trials?

Mr. Edward Bennett Williams: I do not think Your Honor that embarrassment per se would be a legitimate reason for denial of access.

Indeed I think that is what petitioner’s position is reduced to.

Unknown Speaker: How about photographs of someone hurt in an automobile accident, a particularly unattractive photograph, something like that?

Mr. Edward Bennett Williams: I think that would be within the discretion of the Court.

Unknown Speaker: Would it be a permissible reason to deny on the ground of embarrassment to the witness?

Mr. Edward Bennett Williams: If there were a proprietary right and if --

Unknown Speaker: No proprietary right.

Just pure embarrassment?

Mr. Edward Bennett Williams: I do not think embarrassment per se would be sufficient.

Unknown Speaker: Whatever be the position?

Mr. Edward Bennett Williams: And I say this with no meanness of spirit, but I think that is what petitioner’s argument is reduced to.

It is that an alleged conspirator has the right not to be embarrassed by the sound of his inculpatory words solely because he was President when they were uttered.

I think that is the reduction of the petitioner’s argument in this case.

Justice Byron R. White: Mr. Williams, the Court of Appeals said that a normal practice is that Court exhibits are returned to their source when a case is over.

Well, these cases are over.

Suppose the exhibits had been returned and then you wanted to get them?

Mr. Edward Bennett Williams: I think our position is Mr. Justice White, we are not engaging in any debate about title.

We are saying that while they are in the custody of the Court, we have the right to inspect and copy and they are in the custody of the Court and I think had they been returned, we would be on a different footing.

Justice Byron R. White: Yes, but the Court of Appeals made its judgment when the cases were still going on and it said, normally, the exhibits are returned when the cases are over.

Well, the case is over, they have not been returned?

Mr. Edward Bennett Williams: They have not been returned Your Honor because I understand that the manual for the clerks of court which has been promulgated out of a judicial conference mandates that records of this kind, be kept for a period of 10 years.

They are in the custody of the Court.

They have not been returned and our position is quite narrow.

It is that while they are in the custody of the Court, we have a time honored traditional Common Law right to inspect those documents and to copy them and make such distribution.

Justice Byron R. White: Well, common Law for the Federal Courts?

Mr. Edward Bennett Williams: It is a Common Law right in the District of Columbia and it has been recognized for 100 years.

Justice Byron R. White: Federal Common Law --

Mr. Edward Bennett Williams: Yes sir.

Justice William H. Rehnquist: In response to Justice Stevens’s question Mr. Williams, you referred to Mr. Nixon’s right to claim embarrassment.

Do you think he has the right to assert similar claims or contentions on behalf of people whose voices might be heard on the tapes?

Mr. Edward Bennett Williams: I think he has not, Your Honor and fortunately the person’s whose voices were heard on the tapes were all parties defendant in the case below, captioned US v. Mitchell et. al. in which petition for certiorari was denied in this Court last spring.

There are exceptions to that.

There are two advisers to the President who are not parties defendant to that case whose names appear in those tapes and whose voices are heard on those tapes.

They have not seen fit to register objection or claim embarrassment.

I suggest if that is a concern that can easily be handled at the time that the method for distribution is promulgated in the federal register.

They should be given an opportunity to come in and assert what Mr. Justice Stevens pointed out a few moments ago, their right not to be embarrassed or their right if they will --

Justice John Paul Stevens: Why should they be given that right?

You say that is an insufficient basis for an objection anyway?

Mr. Edward Bennett Williams: I think it is an insufficient.

Justice John Paul Stevens: Then why bother with --

Mr. Edward Bennett Williams: There are a lot of rights which are asserted with an insufficient basis such as petitioner’s right in this very Court in my opinion.

Chief Justice Warren E. Burger: Mr. Williams, suppose you have a celebrated criminal case, kidnapping, rape, murder, something of that kind and one of the elements of evidence introduced into trial are statements made which in the aggregate amount to a confession by the defendant or one of the defendants at some point, at least at a point where the Court admits them in evidence and he makes -- these statements that are all in record now in the trial, not subpoenaed in the ordinary sense, but produced by the prosecution.

Now --

Mr. Edward Bennett Williams: Extrajudicial statements, Mr. Chief Justice?

Chief Justice Warren E. Burger: That is made outside of Court, perhaps at the time when he was in custody or perhaps not, but anyway, they are received in evidence.

They are on the record with the tape recording of the trial and in the written transcript.

Now, then the jury acquits the defendant and the conclusion then, efforts are made as are made here to produce them for broadcasting, for tape recording to juxtapose the admissions, the confession against the jury’s verdict.

Do you think that would be subject to being broadcast or used?

Mr. Edward Bennett Williams: I think so Your Honor for these reasons.

Just as the written transcript of the trial would be available for publication by newspapers, periodicals and publishers if they chose to use the transcript and we are familiar with many instances where transcripts have been used as basis for books.

Chief Justice Warren E. Burger: You do not see any difference from the voice and the printed work?

Mr. Edward Bennett Williams: I do see a difference, Mr. Chief Justice.

I think a fortiori the argument obtains that they should be released if they are oral as distinguished from visual exhibits for these reasons.

If you look at the written transcripts of the exhibits which are in question here, you will see that they are laced with the expression “uh-uh.”

Now, uh-uh can be aha or it can be uh-uh or it can be uhu and each of those has a separate and distinct meaning and I think when representations are being made with respect to oral conversations held, extrajudicially, the very best representation of those oral conversations is not in a written document, but in an oral transcript.

So I say Mr. Chief Justice that the argument is a fortiori when we are dealing with conversations.

Chief Justice Warren E. Burger: Now, suppose after that, after the jury acquits this person, the judge, as some judges have been known to do, excoriates the jury, a matter in which as we know in the Code of Professional Conduct is discouraged if not forbidden, would the members of the jury have any basis for stopping the broadcasting of the judge’s denunciation?

Mr. Edward Bennett Williams: I think they would have no more basis for stopping the broadcasting Your Honor than for stopping the publication.

We are all familiar with the news stories that have been written in the recent years about judges remonstrating with juries for their verdicts.

I say once again Your Honor that the same rights should obtain with respect to reproduction of that orally.

Of course, we have as you know Mr. Chief Justice rules throughout our federal system which foreclose the right of access to the tape recordings of the trial proceedings in all of our Courts and that applies also to our Appellate Courts.

Chief Justice Warren E. Burger: What if after then in this hypothetical case, the Court having denounced and excoriated the jury, which has found the defendant not guilty and thereby discharging them, the Court then proceeds to denounce and excoriate the defendant himself.

You would say then too that is available for broadcasting?

Mr. Edward Bennett Williams: Yes, we have all had that experience Mr. Chief Justice and I think it is a part of a proceeding.

It may be an unfortunate part of the proceeding.

It becomes part of the Court record.

It is in the written transcript, and therefore, in the public domain and I suggest also absent the rule which forecloses access to the oral transcript of a trial proceeding that there should be a right also to broadcast such a --

Justice Byron R. White: What about the validity of that rule against access to the oral recording?

Mr. Edward Bennett Williams: I think it is a good and salutary rule at the Trial Court level, Mr. Justice White because I think the search for truth is difficult enough.

Look at the fragility of human powers of perception, the fragility of their powers of recollection, the fragility of their powers of expression and then introduce their veracity, it is difficult enough without putting them on stage and having them conscious to the fact that every word that they utter in the courtroom is being recorded.

I think that would be an inhibiting factor.

Justice Byron R. White: If Mr. Nixon had been a witness in this case and had objected to having his testimony recorded and then broadcast, you would say that if the Court exceeded his request and forbade publication, you would accept that?

Mr. Edward Bennett Williams: There is such a rule existing now Mr. Chief Justice so you would not have to make that argument,

Justice Byron R. White: I know but --

Mr. Edward Bennett Williams: But I think that if there were not such a rule and he said I do not want to be recorded, I think he would lose that.

Just as if he said I do not want to have my words taken down on the transcript.

I think he would lose that because I think the Court would say, quite properly, that we want to have a check on the accuracy of the Court reporter, but we need --

Justice Byron R. White: But if the Court said Mr. Nixon, you do not need to make that request because we have a Court rule that we do not turn loose any of our oral recordings of our trials, you accept that?

Mr. Edward Bennett Williams: That is what I think the Court would say Mr. Justice White.

Justice Byron R. White: And you would accept that?

Mr. Edward Bennett Williams: If I were counsel for Mr. Nixon, would I --?

Justice Byron R. White: No, if you were counsel for the broadcasters who would like to take the oral transcript and broadcast it, the oral recording and broadcast it?

Mr. Edward Bennett Williams: I would accept that for the reasons that I have --

Justice Byron R. White: Just the essence of it?

Mr. Edward Bennett Williams: Well, I have answered that I think.

I have answered that because I believe there is a different rule that obtains at the trial level than from that which obtains at the appellate level.

Justice William J. Brennan: What is the rule at the appellate level?

Mr. Edward Bennett Williams: At the appellate level, my understanding is Mr. Justice Brennan, that we many not have access to the oral arguments of this Court or any Circuit Court across the land.

I do not think that is a salutary rule.

I think it is the wrong rule sir, but I am realistic enough to recognize that if I made that contention and lost, I would have nowhere to go.[Laughter]

Chief Justice Warren E. Burger: You might, suppose the Congress enacted a statute saying that all such records of arguments here be made public under the Freedom of Information Act, we of course might have further recourse to say then the recordings will not be made, is that so?

Mr. Edward Bennett Williams: You could certainly do that, yes sir.

Justice William J. Brennan: Well, Mr. Williams you say you have nowhere to go, what would be your argument that we could not put limitations on this?

Mr. Edward Bennett Williams: I would argue if I were put into that position, which I am not fortunately today as I said at the outset of this argument, I am not here assailing that rule or any rule covering that subject, but I certainly would argue that the transcript of my argument here today is a public record of a judicial proceeding and that the public should have access to my oral argument and if they have access to it, there is a concomitant right to copy and the concomitant right to copy gets constitutional dignity in my view.

Chief Justice Warren E. Burger: By copy, you do mean the precise oral --

Mr. Edward Bennett Williams: I do Mr. Chief Justice, yes.

Justice Harry A. Blackmun: (Voice Overlap) to be solved with your several inflections on --

Mr. Edward Bennett Williams: Thank you very much Mr. Justice Blackmun.

Justice Lewis F. Powell: May I add to this parade of horrible examples by putting one more to you?

Let us assume that instead of having this case, we had a case in which there was a domestic litigation between let us better say, a very high official in government and a wife internationally known.

Let us assume further that you had tapes of various lurid indiscretions, would you be making the same arguments for the availability of those?

Mr. Edward Bennett Williams: I think, Mr. Justice Powell that in the exercise of the Court’s discretion, it might refuse access to those if they were pornographic in nature and I curb that out as an exception.

I think there are certain things where there are rights of privacy, where there are rights of privilege for example, Mr. Justice White talked about the tapes that were not offered in evidence, they were privileged so we cannot claim those.

They are presumptively privileged under the opinion of this Court in 1974.

Justice Lewis F. Powell: May I come back to my example, where would the privilege be as between the parties to this divorce litigation?

Mr. Edward Bennett Williams: I would not say there was a privilege, Mr. Justice Powell.

If the Court in the exercise of its discretion believed that the testimony which had been taken in Court constituted pornographic material, I think it might exercise its discretion to foreclose.

Justice Lewis F. Powell: But only if the Court concluded that the recordings and the testimony constituted pornographic material?

Mr. Edward Bennett Williams: I think there are other situations where it could exercise its discretion, Mr. Justice Powell to foreclose the right of distributing broadcast material.

Chief Justice Warren E. Burger: You mean the super embarrassment of the parties?

Mr. Edward Bennett Williams: I think in cases, to delineate them specifically, I would think in cases where the prosecution offered illegally obtained wiretapped material to prove a case against a wiretap where it offered hardcore pornographic material to prove that the defendant --

Chief Justice Warren E. Burger: That is not really what Mr. Justice Powell is asking you about though.

He was asking you about material that is actually admitted in evidence?

Mr. Edward Bennett Williams: It is admitted in evidence and from the question that he propounded, I assumed he was talking about materials that were pornographic in nature.

Justice Thurgood Marshall: In a public trial?

Mr. Edward Bennett Williams: In a public trial and I suggest to the Court that in that instance, the trial judge should exercise his discretion to not inhibit access to it because it is in a public trial.

It would have been printed unless he excluded the press.

Justice Thurgood Marshall: The reporters who heard it could not print it?

Mr. Edward Bennett Williams: Well, I did not say that.

Justice Thurgood Marshall: You said a public trial?

Mr. Edward Bennett Williams: I said he could print it, Mr. Justice Marshall. I think they can print it.

If I were the trial judge, I would not put that inhibiting rule regardless of the embarrassment that flowed, but it is a consideration that the trial judge might take in the exercise of his discretion, and all that we are saying here --

Justice William J. Brennan: How is the recording laced with expletives?

Mr. Edward Bennett Williams: Well, these are not laced with expletives and we contend that there is a right to inspect and copy them.

Justice John Paul Stevens: Mr. Williams and broadcast?

Justice William J. Brennan: Expletives and all?

Mr. Edward Bennett Williams: I do not think that we can get constitutionally in to what use is made of those records once they are released because we run into countervailing First Amendment considerations and we are now dealing in a question of taste rather than law.

Justice William H. Rehnquist: You are not going to try to plead this decree then as a defense to whatever use or any suits that might arise out your subsequent use of the material, this is just a question whether you get access not to your total right to use it for whatever purpose you see fit?

Mr. Edward Bennett Williams: It is a question Mr. Justice Rehnquist of access, copying and distribution and whoever distributes has to take the full risk of distribution and whatever actions may be brought by any aggrieved parties.

Justice John Paul Stevens: Mr. Williams, do you adhere to your answer that you gave me earlier that embarrassment is never a valid reason for denying access?

Mr. Edward Bennett Williams: I think it should not be.

Justice John Paul Stevens: Never a reason unless it is pornographic, you know, that is a pretty severe, it has to go pretty far to get something pornographic?

Mr. Edward Bennett Williams: Well, I think it is what we are talking about here is material which are part of very -- when I use the term hardcore pornography, I am using really a description of material which is contraband, namely the very possession of it.

Justice John Paul Stevens: You would limit to even balance embarrassment against other considerations.

You would simply say embarrassment of a witness or a third party is never a valid objection?

Mr. Edward Bennett Williams: Because I think whatever embarrassment there may have been has already taken place in the public trial and by the publication of the materials.

Justice John Paul Stevens: You do not think that there would be additional embarrassment by the difference between the different kinds of “uh-uhs” that you described.[Laughter]

After all, you whole position is there is a material difference between reading and hearing.

Like material prints in the terms of embarrassment as well as public interest?

Mr. Edward Bennett Williams: I think so.

I think that embarrassment per se is not a sufficient basis for the denial of a Common Law right and the concomitant constitutional right that flows from inspection.

Chief Justice Warren E. Burger: Does your position not in parts assume something of this nature that if the courtroom holds 130 people and 130 are entitled to hear everything that goes on as they are, but that means there is some constitutional right of 13 million people to hear it by way of the reproduction of the recording, is that right?

Mr. Edward Bennett Williams: I think Mr. Chief Justice that there is a difference between extrajudicial recordings that are offered as exhibits in a trial and the transcript of the judicial proceedings per se and I have said that we are not again saying the rule which inhibits the transcription of judicial proceedings because there are countervailing considerations, the inhibitions that witnesses feel when they are taking for oral recordings.

I think there is a difference, but we are dealing solely here Mr. Chief Justice with extrajudicial recordings that were made exhibits in the Court below that were played to the jury, that were played to all of the persons who were in the courtroom that were visually transcribed, reproduced, sold as books, sold in the form of periodicals and magazine pieces across the world, that is what we are dealing with here.

Chief Justice Warren E. Burger: Let me then return to Mr. Justice Powell’s hypothetical and you have a divorce proceeding between two internationally prominent people known all over the world and the man is a prominent political or other prominent public figure, and we reverse the rules that sometimes apparently occur and we have the husband suing the wife for divorce on the grounds of misconduct with respect to her visits to some gentleman’s establishment, gentleman’s apartment and unknown to her, all of the conversations were recorded by this third party, ungallant as that might be, and the husband finds out about it and subpoenas them.

Now, you have the subpoenaed material brought into the courtroom going one step beyond your response to Mr. Justice Powell’s just now, and now that is available too for all the networks?

Mr. Edward Bennett Williams: It is offered before the jury and since (Voice Overlap) as described by Your Honor presumably it is offered to a packed courtroom and presumably it is published by the press and by the periodicals covering the trial so that at the moment that the recording is played, it is in the public domain.

The facts are in the public domain and it is now out as it were.

Now, we have the question as to whether or not a member of the public can get access to the exhibit in the form of an oral transcript then we contend yes, that there is a right, a Common Law right to get access and then a concomitant constitutional right to reproduce after getting access to that record and I think the Court cannot concern itself at that time with what use is made, what the user would have to take his risks there and after, whatever they may be for actions that might be brought against him by an aggrieved party who would contend that he has a right as Mr. Justice Stevens has pointed out, a right not to be embarrassed.

I do not know of any Common Law Right not to be embarrassed by ones own inculpatory words and I think that finally is the position that petitioner is urging before this Court today.

Chief Justice Warren E. Burger: Well, the gentlemen whose conversations I am mentioning is not inculpated in any way, he is just somewhat guilty, but a third party bystander so far as the trial is concerned, his voice and his conversations are --

Mr. Edward Bennett Williams: Mr. Chief Justice, I am constrained to say that sounds like a male show from the street mark that he is not guilty.

Chief Justice Warren E. Burger: He is not charged with anything.

Mr. Edward Bennett Williams: I thought one of the in precepts criminus with the adultery and if he is, I think that --

Chief Justice Warren E. Burger: The third party whose conversations are being produced in litigation between a husband and a wife.

Mr. Edward Bennett Williams: But then I guess I have to quarrel Mr. Chief Justice with your premise that he has no guilt because I have to put him in equal guilt with the defendant wife and I would have to once again say that he has no right not to be embarrassed by the sound of his inculpatory words if that is what was transcribed.

Chief Justice Warren E. Burger: Well, then unless – I do not like to prolong this unduly, but [Laughter] let us change this and it is the husband, the trial having been concluded and the matter having been terminated, it was the husband who does not want to further embarrass himself or his wife or anyone?

Mr. Edward Bennett Williams: Well, I suppose he had an option not to bring the case on those grounds.

Chief Justice Warren E. Burger: A a little late in my hypothetical?

Mr. Edward Bennett Williams: A little late, but I think that he has no standing having brought the case and having offered the evidence in a public trial having subpoenaed the transcript of the inculpatory words evidencing inculpatory conduct, now to claim that he will be embarrassed if it is further reproduced after it has been offered in open Court in a judicial proceeding.

Justice Byron R. White: (Voice Overlap) The defense you are plugging for would I suppose cover that situation where the words, the voices, or whatever is said is not inculpatory at all?

Mr. Edward Bennett Williams: I think so of course.

Justice Byron R. White: So that really is not the point here.

Mr. Edward Bennett Williams: I do not think it is.

I think embarrassment is really not the point.

Justice Byron R. White: But you would say that the publication might be extremely embarrassing, but it might not be inculpatory in the sense of being criminal or indicating any guilt.

It is just embracing and your principle would cover --

Mr. Edward Bennett Williams: I believe it would Mr. Justice White.

Chief Justice Warren E. Burger: Very well, Mr. Williams.

Mr. Jeffress, do you have anything further?

Rebuttal of William H. Jeffress, Jr.

Mr. William H. Jeffress, Jr.: If the Court please, to say that the injury that is involved here is one of the embarrassment, or one of mental anguish, does not it seems to me demean the importance of the injury that will be suffered.

We have plenty of instances in the law where precisely such an injury is protected against.

Certainly in the law of privacy, certainly in the statutes in some states and Court rules that provide for sealing the record in juvenile proceedings.

That is what is involved in those cases, preventing call it embarrassment, call it mental anguish, but the second thing is that we need to recognize that tapes are different from transcripts.

The transcripts of course have already been disclosed.

But tapes are susceptible to uses that are far more offensive to the people whose voices are captured on the tapes than are transcripts and as we have tried to point out, the Court, it is one thing to produce the tapes pursuant to a subpoena for use in a criminal trial, but the effect of holding that there is a Common Law right of the public to obtain copies of those items that are submitted pursuant to subpoena is in essence to say that the effect of a subpoena is not just to require production to the Court and the parties, but the effect of a subpoena is to require production.

Justice Thurgood Marshall: Why was it that the Court did not restrict the tapes in Court and allowed them to be played rather than to transcript?

Mr. William H. Jeffress, Jr.: That is a necessary --

Justice Thurgood Marshall: Getting back to my original discussion with you then not only the transcript was released from privacy, but also the voices were released from privacy, correct?

Mr. William H. Jeffress, Jr.: Yes, Your Honor, the Court felt that that was an incident of a public trial that ought to be done.

The trial is over.

Justice Thurgood Marshall: Could he not have ruled that you did not need, you should be satisfied with the transcript, but the Court said you needed both, did the Court not say that?

Mr. William H. Jeffress, Jr.: I am not aware of any order in which he said that there was a constitutional or other reason --

Justice Thurgood Marshall: Well, the Court did say that these could be played to the audience and everybody in that courtroom.

Mr. William H. Jeffress, Jr.: Yes, he did and he provided --

Justice Thurgood Marshall: They made it to that extent public?

Mr. William H. Jeffress, Jr.: That is correct Mr. Justice Marshall, but he did not rule at that time that while the tapes were going to be played in the courtroom and the trial was going to be conducted as publicly as a trial can possibly be, that once that trial was over, there was any right of the public, any interest in the public in obtaining copies of those tapes to do with them whatever the public pleased.

Now, I would like to mention one other thing as for the manual for District Court clerks.

It has been our position and we think this is supported by the Common Law cases, the cases that established the Common Law Right, that the Common Law Right is applicable to materials that are the property of the Court.

It said that the manual for District Court clerks provides that in cases of great historical importance, that exhibits are to be retained by the clerk or to become a part of the clerk’s permanent records, but the quotation that is relied on by Judge Gesell by the Court of Appeals and by the respondents is not the correct provision of the manual for District Court clerks.

The manual in fact recognizes that the clerk should not dispose of documentary exhibits not physically filed with a case that is in the Court jacket and not claimed by parties to the case, that is item number 10 in Chapter 13.

In the comment to that, it says that case exhibits impounded by the Court or voluntarily submitted as evidence normally remain the property of parties to the case.

So the manual does not stand for the proposition that these are part of the traditional Court records that are subject to the Common Law right of inspection.

As we have said, there is nothing in the purpose of a subpoena.

There is nothing in the function of a Court that justifies the Court in so treating them.

Justice William H. Rehnquist: But does not the Act that we had before us last spring effect at least the property claim that your client might otherwise assert?

Mr. William H. Jeffress, Jr.: I believe the claim does affect any property right that he might assert, but as I have tried to say, there is no question here of title to the tapes.

No argument that we make depends on the title.

Justice William H. Rehnquist: Are you distinguishing between property and title?

Mr. William H. Jeffress, Jr.: One thing is clear, Mr. Justice Rehnquist, no I am not distinguishing between property and title, but I am saying that one thing that is clear is that the tapes are not the property of the Court.

The tapes are in the custody of the Court for a limited purpose.

Now, whether it is the government of the United States through GSA or Congress that should decide whether to make these public or whether it is Mr. Nixon himself that should decide whether to make these public, the fact remains that it is not the Court which has the tapes only for a limited purpose and there is not Common Law principle which would apply regardless of ownership and say that these sort of exhibits must be supplied to the broadcasters and record companies.

Chief Justice Warren E. Burger: Have these tapes now been delivered to the GSA pursuant to the opinions of sometime ago last year?

Mr. William H. Jeffress, Jr.: Mr. Chief Justice, I must confess that I do not know whether the underlying original recordings have been delivered.

The Court copies certainly have not.

Chief Justice Warren E. Burger: Assuming for a moment that they were in the possession of GSA and not of the clerk, would the GSA be a necessary party to any effort to reproduce them?

Mr. William H. Jeffress, Jr.: Well, I certainly think that the Court could not grant effective relief if GSA were not a necessary party, but as the Court is aware and as explained in our reply brief, the GSA originally took the position that no tapes subject to that Act would be copied and provided to the media and the public.

That has gone back and forth between GSA and Congress in the course of changing and resubmitting regulations and the current regulations though still not final, appear to or may at least leave that decision dependent on the decision of this Court in this case.

Justice William H. Rehnquist: In other words, we are talking not just about a housekeeping policy, the Court or GSA is going to make its decision dependent on what the housekeeping policy of the clerks’ office of the District of Columbia is?

Mr. William H. Jeffress, Jr.: Odd as that may seem, Mr. Justice Rehnquist, that appears to be what is in the latest proposed regulations submitted by GSA to Congress.

It is provided that the distribution or dissemination of the tapes will depend on the whatever the ultimate relief granted in this case.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Whalen v. Roe - Oral Argument

Sun, 08 Aug 2010 17:07:04 +0000

Case:

Whalen v. Roe

Media File:

75-839_19761013-argument.mp3

Related Transcript:

75-839_19761013-argument.xml

Transcript:

Argument of A. Seth Greenwald

Chief Justice Warren E. Burger: We will hear arguments next in 75-839, Whalen against Richard Roe and the others.

Mr. Greenwald, you may proceed whenever you are ready.

Mr. Greenwald: Mr. Chief Justice and may it please the Court.

This is an appeal from a judgment of the United States District Court for the Southern District of New York which declared unconstitutional enjoined the operation of three sections of the New York Public Health Law contained an article 33 of that law which deals with controlled substances, dangerous drugs, and alike.

Actually, only Section 3332 (2) (a) is involved.

That is the provision that requires that on filed official New York State descriptions, the names and addresses of patients be contained thereon, and be filed with the New York State Department of Health whose commissioner is the Appellant herein.

The District Court enjoined this statute on the basis that this provision was an invasion on privacy of the appellees who are anonymous, basically anonymous patients and known doctors.

I would allude to the operation of the other sections which were enjoined.

They require the use of the official New York State description in prescribing these certain dangerous drugs, and this applies to doctors and pharmacist in the State of New York.

Unknown Speaker: Does New York have any legal requirement that either pharmacist in question or the doctor in question, keep a record of drugs he has prescribed and that that record be available for inspection on the premises?

Mr. Greenwald: Basically, yes.

As it was in the prior law under this triplicate prescription system, one copy of the prescription is kept by the doctor if he self dispenses the drug or the pharmacist who fills that description.

So therefore, the doctor or pharmacist does have to keep these records and the statute so provides for a period of five years they have to keep these records.

Unknown Speaker: Did your opponents challenge the constitutionality of the requirement that that record be open for inspection?

Mr. Greenwald: No, and indeed the District Court in one of its prior decision, I think even decision that resulted in the judgment, stated that the appellees conceded the constitutionality of the prior requirements of law.

I would only point out of course that not being an issue, that provision or requirement not being an issue certainly at this time.

It is nothing else, it is presumed constitutional, it is not an issue in this case.

Now --

Unknown Speaker: The name of the patient would be disclosed under the prior law, wouldn’t it, beyond the description on it?

Mr. Greenwald: Oh, yes of course, yes right.

The name of the patient under the prior law, and this is at least for 40 years, was available to the New York State Department of Health.

Unknown Speaker: Upon demand.

Mr. Greenwald: Upon demand or basically --

Unknown Speaker: For periodic inspection.

Mr. Greenwald: Periodic inspection of pharmacist’s file of prescription records.

Unknown Speaker: But it wasn’t automatically filed in a computer anomaly?

Mr. Greenwald: Well, I would say that what the law request requires is that it be each month the (Inaudible) file were sent up to the Department of Health in Albany.

I would, at this point, like to point out, the computerization is not a requirement of law and administrative operation.

Unknown Speaker: But that in fact was the difference between the old law and the present law being attacked, by the present law that is being attacked.

Mr. Greenwald: Yes, I think the requirements of filing and I think, at this point, what was the purpose of requiring filing in triplicate descriptions.

Unknown Speaker: Does New York have a statute requiring gunshot wounds to be recorded by a physician?

Mr. Greenwald: Oh yes, they have a --

Unknown Speaker: Passed on by the Court of Appeals of New York?

Mr. Greenwald: I am not aware but I believe that it had a general variety of medical reporting statutes such as gunshot wounds, venereal disease, contagious diseases and alike, and I do not believe it is up to the file because it is rather obvious they serve a public health need as does this filing statute also, and this is the question of purpose.

Unknown Speaker: This is whole point in the case, isn't it?

Mr. Greenwald: Well, I think that --

Unknown Speaker: I don’t think the other side agrees with it.

Mr. Greenwald: Yes.

I think that the purpose is rather obvious.

Number one, it is only for a certain type of dangerous and high performing drugs that is called the Schedule II drug which have been found to be forming psychologically dependent attitude and alike.

It does not cover the whole spectrum of prescription prescribing.

The State of New York is not engaging in some wholesale supervision of the practice of medicine.

We do not even know what elements are involved here.

It only concerns narcotic and amphetamine-type drugs where the danger or abuse of the public health, danger to the public health is greatest.

Now, it has been conceded in the decision I think my adversary is that abuse in diversion of these type of drugs from legitimate channels is a serious problem, and indeed there is a serious problem in this area of misapplication of what I say, ‘Medical Principles’.

A lot of these drugs are prescribed by doctor studies have been made for causing medical uses for rather fallacious reasons.

Further, I would submit that -- or I think it is rather obvious that inclusion of the names and addresses on the file prescriptions do assist in deterring and exposing prescriptions which are not within the law.

They assist in investigations.

In this area, the State of New York is exercising its police power in the interest of the public health and safety.

It is regulating the use of dangerous drugs, those which are habit-forming which it has for over fifty years since I cite the Whipple v. Martinson case, then recognized by this Court, it is clearly within a state of power that discretion and the control of this type of dangerous drug.

Unknown Speaker: Mr. Greenwald I may be sure, you are taking a position that if you did not have the names and addresses, the state could not effectively do what it wants to do under the statute.

Mr. Greenwald: That is quite clear and obvious, even from the decision below, it tried to explain away the reasons for names and addresses on, say, basis of number of fallacious assumptions, and I would say of course it was the true primary purpose perhaps of the filing to identify a patient going from doctor to doctor and receiving, say, even from one or more doctors in over 30 days supply, but that was not the only purpose, and I would emphasize that the appellant never conceded that it was.

Unknown Speaker: Well, I suppose it is to reach doctors like the late Dr. Moore whose case we had here a year or two ago who gave prescriptions particularly to who never came to his office, he just gave them out wholesaler.

Mr. Greenwald: That is part of the --

Unknown Speaker: Would the statute catch that kind of violation?

Mr. Greenwald: Quite clearly, it would catch that type of violation and having the names and addresses of that doctors and patients would be quite valuable in the investigation of that doctor’s activities.

Unknown Speaker: The record shows you did not need it.

In fact, you did not say?

Mr. Greenwald: I would say -- now the question I think -- I am not that well acquainted with the case of Dr. Moore but I would emphasize that the case -- I just cite a similar type of case that did not reach this court, United States v. Warren.

It takes months and months of laborious investigation to build a case against the doctor like this one, some of the activities of this type of doctor so well-known they printed up in the newspapers.

The point being that filing with names and addresses so we know who are the patients, the supposed patient you might say, obviously enables the enforcement authorities to much more quickly bring proceedings against that type of doctor to have a full picture of this type of activities to better control this illegal activity.

Let us put it quite bluntly because this has been the record.

So, deter this activity from taking place this type of medical practice not within any ethical principles from either taking place in the first place.

Now, as I said, we do have -- and it is rather obvious that the problem or the situation, I will say the situation of a patient, it is a bogus patient basically, going from one doctor to another to obtain this type of dangerous drug.

If he goes from doctor to doctor, there is really no conceivable way that this type of activity is going to be exposed unless you have patient’s names and addresses because you correlate the patient’s…

Unknown Speaker: And of course patients couldn’t use a different name each place.

Mr. Greenwald: Now that assumes that that patient, that person is going to violate another section of the law.

We have a prohibition against of course using false names or fraud in deception, and so just simple assume that that type of person is going to violate one law, two laws, three laws, I think it simply specious.

There’s no answer to --

Unknown Speaker: Specious! Did you mean that a person that is addicted to dope, is worried about law violations.

You should know about everything else, do you know about that?

We will commit...

Mr. Greenwald: My answer to you is that this Court a number of years ago held that the condition of being a drug addict is not a crime.

I believe that was in…

Unknown Speaker: Yeah but this is not the short answer to the broad question that you cannot catch them all but you are going to try to catch as many as you can.

Mr. Greenwald: Well, certainly that is the case.

We cannot assume that every single person is going around, using all types of things, and I would also say that if a doctor is doing his job, he might say or practicing medicine properly, there are many situations where a patient or a person coming around who just cannot use a false name.

Many times these people are on Medicare or Medicaid.

Obviously there are other ways to check.

The use of a false name would expose their type of activity even more quickly.

Justice Thurgood Marshall: In New York city the doctor does not know where the patient lives.

In New York City, believed or not, I don’t think judicial notice is not a rule to deal with it.

Mr. Greenwald: I will also state that when I am from New York City and that when I go to my doctor, after I go - and this is I think a typical procedure - a bill is mailed to me.

That bill did not get to me, the doctor would be put on some notice that something is out of touch.

Justice Thurgood Marshall: Well, I wouldn’t imagine that the doctor you are talking about, do not give bills.

Mr. Greenwald: That may be another thing we would like to investigate in this case because what we find a lot of times is these doctors who are engaged in this type of activity do not keep medical records.

Indeed, the triplicate prescription with the names and address may be the only record of what is going on in this doctor’s practice or so-called practice.

Justice Thurgood Marshall: The Schedule II drugs are, as I understand it, are various drugs that have a preferably good medical and pharmaceutical purpose when properly used and prescribed for certain given elements, physical or emotional or whatever, but whose used by people who do not need them or whose overused maybe even by people who do need them, is an abuse, and can become, can lead to physical or psychological dependence.

Is that right?

Mr. Greenwald: Yes.

Justice Thurgood Marshall: So, the Schedule II drugs are not hardcore narcotics, are they?

Mr. Greenwald: Well, when you talk about Schedule II drugs, they are in part narcotics.

If you talk about hardcore narcotics, the three drugs such as say, heroin that is in, what is called, the Schedule I absolutely prohibited because there is no record of use.

Unknown Speaker: Right, nobody can prescribe that.

Mr. Greenwald: However, I would like to emphasize - and we did not make an issue of it in this case.

Yes, the Schedule II drugs do have recognized medical uses but even these recognized medical uses are subject to great disputes.

Unknown Speaker: Let me ask it this way without getting into - I do not know anything about drugs and medicine and I presume you do not either, but --

Mr. Greenwald: More than before I started in this case.

Unknown Speaker: New York has not prohibited commerce in any of these Schedule II drugs, has it?

Mr. Greenwald: Absolutely not, we make no judgments or we do not look over the doctor’s shoulder before he prescribes a drug.

Unknown Speaker: Well, all of these are permissible for a doctor to prescribe, none of them are prohibited such as heroin would be and is.

Mr. Greenwald: That is correct.

These drugs do --

Unknown Speaker: Either sleeping pills and various emotional tranquilizes and so on and that sort of thing.

Mr. Greenwald: Yes, I would say morphine would be one type.

That is a narcotic type drug.

For example, I believe an amphetamine type one which is quite frequent in this case, one called Ritalin which has several uses.

Unknown Speaker: I think morphine is included.

Mr. Greenwald: Morphine, yes morphine is included.

Unknown Speaker: As a Title II drug?

Mr. Greenwald: As a title II drug, because Morphine is an opium derivative and habit forming and dangerous.

It is not --

Unknown Speaker: Any difference suit from your point of view on the police power of the state in controlling any of these drugs?

Mr. Greenwald: Well, I think it is clearly within the police power of the state to control these drugs and part of the control is the method of distribution and the distribution is ultimate use of this part.

Now, if I --

Unknown Speaker: You make it clarity of it in your substances to balance the argument, the purpose of my question was to understand the context of this statutory requirement.

We are not dealing here with contravene as such.

Mr. Greenwald: No, basically and it is in the legislative history, this law is not designed to control perhaps the most serious problem of street drugs.

This statute is designed to control or better regulate the problem of diversion from apparently legitimate sources.

Now --

Unknown Speaker: Mr. Greenwald one more question to know, if we affirm here, do you feel the existing reporting requirements as to venereal disease, infectious disease, gunshot wounds of your state will be jeopardized?

Mr. Greenwald: Yes, I think quite seriously they will be in great jeopardy and perhaps more important than I -- I think it was my first point about the bad policy of a finding a doctor-patient relationship been in of itself as a fundamental interest is that as I think Your Honors are all aware, the doctor-patient privilege finds its expression in law in confidentialities provided for only in state laws, New York does provide for doctor-patient testimonial confidentiality.

Now, it was not known even at common law, and indeed there are many variations on this privilege and furthermore, commentators have criticized the privilege because many times it prevents courts from getting at the truth.

What it should be emphasized is that it is not necessary for medical treatment for there to be a confidential relationship between doctor and patient.

I think this case demonstrates that.

There are allegations or I would say the record shows the testimony of the patients, that they stopped using Schedule II because of the filing requirement.

Well, let us look at what happens.

A patient goes to the doctor, he tells the doctor what ails him, the doctor than makes a diagnosis and determines on a course of treatment, in its complete discretion or his decision, he may decide on a Schedule II drug, and it only at that point does he write a prescription, how I ask you had the practice of medicine been interfered with.

The practice of medicine has not been interfered with.

In the 30 years there is no record of it in California, the 15 years in Illinois, and I think about 10 or 12 years in Idaho with the same type of filing and reporting has been enforced.

Now, as we said, I said the problem of situation is doctor to doctor.

Now, as to patients what the purpose of the statute, the patients who gets from a doctor an over 30-day supply, now this would more probably be the abuse of the patient by the doctor.

Now, obviously we can still printout as we do, we could still printout prescriptions, anonymous prescriptions -- there is anonymous list of patients that contain over 30-day supply which is a violation of the law.

However, what we can not know is, is this one person receiving the multiple prescriptions from the same doctor or what?

All we can do now is get a list of perhaps a hundred, a thousand of these types of prescriptions to come through each month and send out investigators back to the drugstore to find out who was the patient to find out which are the most serious cases of abuse.

It is absolutely impossible to do with 24 investigators in the whole State of New York.

Unknown Speaker: Does New York law prohibit the prescribing of a more than 30 day supply of schedule II drugs?

Mr. Greenwald: Yes, as quite specifically under the Triplicate Prescription Law, a doctor is limited to prescribing a 30-day supply with several exceptions, I believe, some of the drugs with children, I think I believe the Ritalin they maybe able to prescribe the 3-month supply, but basically there is a limitation of a 30-day supply.

In point of fact the exception for I think 3-month would depend on knowing the age which we are trying to be reported and the drug and the patient, for example, to know whether that was being complied with.

Now, another point or another purpose is that basically filing a triplicate prescription with patient names heightens the doctor’s awareness to the status of his patients.

There is of course, and it was said -- well defense lawyer has no application to addicts, which is true, in the sense that the law prohibits prescribing this type of Schedule II dangerous drugs to addicts and the habitual users.

But how are we going to know whether that is being complied with unless we know or have some record of who are receiving them.

Another major problem I would submit is, if the names and addresses are missing from the filed prescriptions, a doctor could prescribe for himself with little danger of detection.

He could use false names, his own name, whatever name he feels like.

He could make sure it is within under 30-day supply because he has these matters.

I would also say, and it is rather obvious from your own cases I think the Moore case which I am not acquainted with that there are unscrupulous doctors and pharmacists who are basically dispenses a drug at will.

Now and finally you have the question of forgery.

Now it is true the computer cannot in and of itself identify a name as a forgery but, and this is of course I think which cases have come up.

Usually forgeries when you have a forgery, the person who is using a false name does it in a rather large amount, just like when you print up counterfeit money you do it in the amount to make it worthwhile, and normally because it is a false name it is a same name.

Now, if we do not know the name there is no way to, say, send out the alert that someone using the name of such and such is active in your area, if you get a prescription in that name.

This alert can be sent out to the druggists.

Unknown Speaker: You are talking about the forging of a registered doctor’s name or the forging of nonexistent doctor.

Mr. Greenwald: It could be either way.

It could be possibly in the true name of the patient and with a forged doctor’s signature or to be a false name with a true doctor’s signature.

It could be any number of things.

The point is there are complex variations.

Justice Thurgood Marshall: It is also true as you said you only have 20 people who would do all of it.

Mr. Greenwald: Well I think and the point is --

Justice Thurgood Marshall: Yeah I am forgetting anything.

Mr. Greenwald: Not certainly.

That sums to the question that the District Court seemed to consider the fact that because we had not gotten enough results here that somehow it then became unconstitutional that if we had a good record of results in this area if we produce enough cases defenders would become constitutional.

I submit that this is not the test of constitutionality that this Court has clearly stated the case in other similar situations such as I think the Danforth case that the filing or reporting requirement is reasonably directed to the preservation of health.

I submit that this type of filing requirement clearly is so related.

Now, I also want to take up very briefly.

My time has almost expired.

That filing clearly does not interfere with the doctor-patient relationship, and I submit that the doctor-patient relationship is not constitutionally protected.

Unknown Speaker: Is there a doctor-patient privilege in New York?

Mr. Greenwald: Yes, there is but for purposes of the statute as it is right in the law and I cited in my brief, it is not applicable in this case.

Unknown Speaker: But is that a statutory privilege?

Mr. Greenwald: It is statutory privilege as it is --

Unknown Speaker: Or there is any other operative in a criminal proceeding, may the doctor be called to prove the case against a patient which involves revealing of medical information?

Mr. Greenwald: We do have, and I wish to emphasize the court below ignored our confidentiality provision in this law.

Unknown Speaker: Well, I know but how about the answer of my question?

Mr. Greenwald: The answer is that in a court to the criminal investigation under 3371, patient’s identity can only be revealed pursuant to court’s orders subpoena.

It is available if, and I give the example in my --

Unknown Speaker: Well, if the patient is invaded for drug trafficking, can you call a doctor for example and making testify against him as he has relevant evidence from his records?

Mr. Greenwald: I would question whether this is the direct enforcement and I wish to emphasize that that is not -- it is not an answer to your question truly but once --

Unknown Speaker: But you do not know what the answer is.

Mr. Greenwald: I really perhaps do not know what is the answer is because it is not involved in this case.

These appellees the plaintiffs here --

Unknown Speaker: But you argue that if you lose this case on unconstitutional grounds there will be a constitutional doctor-patient privilege.

Mr. Greenwald: Oh, well that I think it is quite clear that an affirmance of the judgment below will establish a constitutionally protected doctor-patient privilege.

The District Court clearly found such a privilege from its reading of the abortion in Roe and Doe cases.

I believe that those decisions did know such thing that it was a misreading of those decisions, but I think that - and as I have emphasized - that it would be improper to so do, there are valid policy reasons not to and I do not think that had been at all answered by my adversary.

This Court also has declined in any number faith just as last term to extend any right of privacy, such as or I would say going back one last term but in the Planned Parenthood of Missouri v. Danforth, even in abortion context reporting abortions with names and dresses would not violate a patient’s privacy.

California Bankers Association v. Shultz, no violation of right of privacy in reporting bank records.

Perhaps the most obvious one is that income tax reporting is well-known and many people some expectation of privacy in that area, but for the operation of income tax laws and/or I submit also a drug control program, you have to have these reports, and it does not make any difference, whether the statute is been properly administered.

If we had never computerized one prescription, this law would have a purpose, computerization is not necessary to the operation of the law.

Computer is not an unconstitutional machine, there is a specter here.

Now, the specter in this case is whether, is the fear of unauthorized disclosure.

Now, the appellees, the patients here were totally ignorant of this law, what it really was.

They have thought that their record is going to be available to the police, to the army, to the Bar Association, that they were going to be maintained for ever and ever, and that is simply was not and is not the case.

And a fear of hypothetical stigmatization has never been held to state a course of action.

Only this past term, this Court held in Paul v. Davis that even if, what they fear, these appellees fear, disclosure of their drug records actually had occurred, there would not be any invasion of any of a federally protected right.

Indeed, their protection comes from the very statute they are attacking, Section 3371.

At this point I would want to reserve my few minutes remaining for rebuttal if necessary.

Chief Justice Warren E. Burger: Very well.

Mr. Lesch.

Argument of Michael Lesch

Mr. Lesch: Mr. Chief Justice and may it please the Court.

Perhaps I should state the issue in this case as I understand it.

The judgments of the court below enjoined enforcement and declared unconstitutional this statute in so far as it required disclosure to the State of New York of the identity of patients receiving Schedule II drugs.

Now, Mr. Greenwald just referred to the Danforth case in which this Court upheld record keeping requirements, but yesterday I had the opportunity to look in the library of the Supreme Court and to look at the forms that were actually required by the State of Missouri in the Danforth case, and those forms specifically said that they did not want the patients’ name, all they wanted was the patients’ number.

So that if the State of Missouri was interested in statistical information related to a particular patient and they wanted more information about that patient.

They could then go back and get the name, but there was nothing on file in the State of Missouri.

There was no computer printout of all the names of people who had had abortions.

Justice William H. Rehnquist: Well, Mr. Lesch, did you challenge or do you now question the constitutionality of the record keeping requirement that a physician who prescribed these drugs, keep those records or in his office and that those records to be opened to inspection by the State of New York?

Mr. Lesch: No, Your Honor, we are not challenging that here today.

Justice William H. Rehnquist: You concede that.

Mr. Lesch: No, we do not concede it either, but we do not think that that point has to be reached.

Justice William H. Rehnquist: Well, then all of your constitutionally boils down towards that if that is made easier through modern technology for the State of New York to enforce this law, there is the constitutional difference.

Mr. Lesch: There is the constitutional difference.

It is our position, when the state of New York obtains 125,000 prescriptions per month through a massive computerization and record collection system, 2.5 million prescriptions over a period of the year and it turns out that they have two suspects in that system, one of them it turns out is exonerate and the other one is unresolved at the time of trials, the whole system --

Justice William H. Rehnquist: Now, wait a minute, wait a minute Mr. Lesch, you cannot that just as be taken into evidence the system is working very well that it is in fact deterring views of the things.

Mr. Lesch: If the system -- well, but the same thing happened before Your Honor.

There is nothing in the legislative history, there are no statistics that this type of system is necessary, triplicate prescription are phantasm or specter or an unsupported theory that Mr. Greenwald and the Department of Health have found in this case.

For example, Mr. Greenwald gave a lot of hypothetical situations to the whole court today, none of them are supported in this record.

They had Mr. Cannizaro (ph) testified who was the head of their system, they had Mr. Belize (ph) testified, then we have the whole legislative history as part of the record before this Court, no one has ever suggested that the so-called doctor to doctor problem is really a problem.

Yeah, that was on that basis that they went to the Court of Appeals and the Court of Appeals sent the case back to trial.

The principle argument that they made was that there was a doctor to doctor problem here namely that patients using the same name would go to more than one doctor in order to obtain the elicit supplies of these drugs.

But that problem turned out to be nonexistent and it is against that fact that thousands of names of patients are being put on a computer as to which there is instant access.

So, anybody who is authorized and the statute provides for interdepartmental transfer of this information can obtain that information.

Moreover, the record is also uncontradicted Mr. Justice Rehnquist that the security system for this program is entirely inadequate.

There was one witness in this case, a man by the name of Wasserman (ph).

He was an expert on security, he pointed out defect after defect after defect in this system, by the way the --

Justice William H. Rehnquist: Well, wait a minute, this is your constitutional argument than turn not on the fact that you have to turn -- the doctor has to turn the records over to authorized New York personnel, but on the further fact that there maybe leakage to unauthorized persons.

Mr. Lesch: Our constitutional argument turns on the basic right of privacy that when you have here, first of all a relationship that has been historically recognized, for example, by the existence of the physician-patient privilege.

Unknown Speaker: But there is nothing in the constitution about that.

Mr. Lesch: There is nothing in the Constitution --

Unknown Speaker: That is a matter of state law, state evidence law.

Mr. Lesch: That is quite right, but there is something in the Constitution as this Court has found in Roe v. Wade and Doe v. Bolton that there are certain attributes of that relationship that deserve protection.

Unknown Speaker: You would find the same thought with reporting of gunshot wounds.

Mr. Lesch: No, I do not Your Honor, I think that is entirely different case.

Unknown Speaker: I am not reporting of contagious and venereal disease.

Mr. Lesch: Absolutely not, that is entirely different because in the reporting of gunshot wounds or in the reporting of contagious diseases, there is the compelling state interest, there is the legitimate interest of the state.

If somebody shoots somebody else, the state ought to take actions and the state ought to find out about a gunshot wound as quickly as it can, but if someone is --

Unknown Speaker: It invades a certain amount of privacy, does not it?

Mr. Lesch: It invades a certain amount of privacy.

In Doe v. Bolton and Roe v. Wade this Court did not hold that there is an absolute right of privacy.

It only referred to the first trimesters the right to make the abortion decision.

We are not saying that the right of privacy is absolute in any sense, but we are saying that the court looks at the relationship, looks at the doctor’s right to prescribe and there is testimony in this case, for example, by a psychiatrist, that he would not prescribe Schedule II drugs to patients of his because he would have to tell them about the filing requirement.

Unknown Speaker: Why is that any more significant than -- there are some doctors who will not perform abortions since that is a personal scruple on the part of the doctor.

Mr. Lesch: No, it is more than that I believe Your Honor because in Roe v. Wade and Doe v. Bolton, this Court talked about the right to practice medicine unhindered by non-medical considerations.

It is a non-medical consideration, we urge as to what the effect of the filing requirement will be on the future help of the patients.

That should not be what goes into the doctor’s mind when he decide, is this drug necessary for my treatment to this patient.

It ought to be simply what is the patient’s medical history and what will the affect of this drug be on the patient.

This Court has held that there are other ways to monitor doctors; there are licensing requirements.

The state, for example, can on the prescriptions, we are not challenging this, the state can require the doctors to file all of their prescriptions with the doctor’s name on it.

The only thing that we object to and that is why I restated the issue at the beginning of my argument is the patient’s name.

So, in the case that you mentioned Mr. Chief Justice before, the Moore case, if a physician is giving is out a large number of prescriptions of Schedule II drugs, the Department of Health can go to that physician and ask him to see the patient records and check upon the bona fides of every one of those of things but what we were doing --

Unknown Speaker: Did you say in the colloquy with our brother Rehnquist that you would or would not concede the State could require the patient to gave his name to the doctor?

Mr. Lesch: The patient to ho give --

Unknown Speaker: -- who is getting the prescription?

Mr. Lesch: Whether the State could require the patient to give his to the doctor.

Unknown Speaker: To the doctor, and there is no further requirement reported to the State.

Mr. Lesch: Oh, I have no problem with the State giving -- the patient giving his own name to the physician.

Unknown Speaker: Or the State is requiring the physician to keep a record of the patient’s name.

Mr. Lesch: I have no problem with the State requiring the physician to keep name.

Unknown Speaker: So, that if sometimes if there were probable cause to suspect something, you could subpoena the records.

Mr. Lesch: Exactly.

Unknown Speaker: You would not see anything wrong with that?

Mr. Lesch: No, I would not because there you have --

Unknown Speaker: What about showing the doctor before a grand jury?

Mr. Lesch: I would see nothing wrong for calling a doctor before grand jury.

Unknown Speaker: And ask him, tell me the names of the patients to whom you prescribe Title II drugs in the last year?

Mr. Lesch: Yes, and there is the basic distinction between that case and the case we have, and that is that that case provides re-invocation of the judicial process which the two concurring justices in the --

Unknown Speaker: But you need know probable cause to call him before the grand jury.

Mr. Lesch: You need no probable cause but you do have a District Court Judge supervising the conduct of the grand jury proceeding.

Unknown Speaker: Well, supervising -- you can claim the privilege against self-incrimination but that is not the questions here.

Mr. Lesch: No, if he claims on behalf of his patient, the doctor-patient privilege -- and it is determined by the District Court Judge that the question that are being asked to that doctor are simply a fishing expedition, he want be required to ask that --

Unknown Speaker: Well, but that is the question of the State law whether he can claim the doctor-patient privilege.

Certainly, there is no federal doctor patient privilege that one can claim before a grand jury.

Mr. Lesch: Well, to the extent that there is -- to the extent that we are talking about that, and I would obtain in the State Court proceedings.

Unknown Speaker: So, what is the difference between calling it before a grand jury and inspecting his records?

Mr. Lesch: If there is a right of privacy that a patient and a physician -- that a patient has and that a physician can protect then a court can supervise the exercise of that right of privacy during grand jury testimony or during demands for...

Unknown Speaker: Oh then you are saying in response to Justice White that he be called before a grand jury but if he is asked to disclose the names of his patients, he then asserts this District Court decision.

Mr. Lesch: If in fact he has reason to believe that this is a fishing expedition or there is no basis for such a request, he can do so, but that is not --

Unknown Speaker: But you are saying that is just like any witness before a grand jury, you would not be saying that this would be special to the doctor.

Mr. Lesch: I am not saying that.

Yes that -- excuse me, Your Honor is correct, this is what I am saying.

Unknown Speaker: If the normal rule would apply, whatever it is?

Mr. Lesch: The normal rule would apply, but you would have the opportunity for judicial intervention, and that is what we do not have in this case.

Unknown Speaker: Well, can New York may witnesses before a grand jury to find the answer of question on the grounds of some fishing expedition or are they limited to the Fifth Amendment.

Mr. Lesch: Your Honor I cannot answer that, I think that if --

Unknown Speaker: Have you rather heard of a state that allows a witness to --

Mr. Lesch: If a warrant is insufficiently specific, if a request for information is overly general then I think the objection to the request for information can be made that it is a fishing expedition.

Unknown Speaker: We do not need a warrant -- examine own for a grand jury, all you need is a subpoena.

Mr. Lesch: Your Honor I was talking about a request for information to a physician by way of want or subpoena.

Justice Thurgood Marshall: But Mr. Jaffe your point I understand is --

Mr. Lesch: I am Mr. Lesch Your Honor.

Justice Thurgood Marshall: Oh, that is right.

I understand your point is that whatever position the doctor makes a judge will decide it.

Mr. Lesch: Exactly, exactly.

Justice Thurgood Marshall: Whether it is -- if it is a fishing or whatever it is, it will be judge who decide it.

Mr. Lesch: That is the only point that I am trying to make here.

Whereas here we have the collection of millions of prescriptions without any opportunity for a judge to decide anything, and absolutely no need shown either before the statute was enacted or since it has been enacted that these had any effect whatsoever.

We have 31 persons who are operating this system and have access to the information, we have exactly two suspects in the 20-month that the system was operated, and in that time one of them was discharged and the other was left on result.

Unknown Speaker: Well, I think you are not suggesting that if you win this case then there will an established, a constitutional privilege which would permit a patient to object to his doctor testifying against him.

Mr. Lesch: No, constitutional privilege, what I am saying though is --

Unknown Speaker: In a criminal case.

Mr. Lesch: That has nothing to do with this case as far as I am concerned.

I am not saying that it is impossible that this Court will some day decide that certain aspects of the physician-patient relationship are privileged, for example a psycho analyst --

Unknown Speaker: But the rule you are contending for you do not suggest would determine that question.

Mr. Lesch: Absolutely not, it certainly would not, that is a question for another day.

As the question is relating to gunshot wounds which is the much simpler case, as said before I have no problem with that or the reporting of venereal diseases.

Unknown Speaker: But you are contending for generalized constitutional right of privacy which in Court’s opinion in Katz v. United State said that did not exist.

Mr. Lesch: Well following the Katz case, this case decide Doe, Roe, it also decided the case of Buckley v. Valeo.

In all of those cases that Court recognized that privacy is a constitutionally protected right.

Now, I am not saying that it is a generalized right of privacy.

What I am referring to here is the right of a physician to practice medicine which is well within the confines of this Court’s prior decision, the right of a patient to receive advice untrammeled by non-medical consideration which is also well within this Court’s prior decision.

I am not saying that every aspects of privacy is constitutionally protected, but I am saying when you have the peculiar situation of first of all the physician-patient relationship and secondly you have the effect on the practice of medicine by the physician and thirdly you have the total lack of any necessity for the disclosure of millions of names of highly personal information of the State, but under these circumstances the right of privacy also exists.

The Court in Poe v. Ullman talked about the right of privacy being a rational continual, and I believe that this case is a rational continuation.

Unknown Speaker: Ullman, dismissed the writ as improvidently granted, didn’t it?

Mr. Lesch: I was referring to the concurring opinion in that case which was quoted by Judge Friendly (ph) in the court below.

Unknown Speaker: Dissenting opinion, I think it was.

Mr. Lesch: I think it was at that time but that was also before Doe and Roe Your Honor.

Unknown Speaker: Did you say Judge Friendly I did not observe Judge Friendly is --

Mr. Lesch: Well, there was a -- Judge Friendly -- originally this case was dismissed.

Unknown Speaker: (Inaudible) but not in this present case.

Mr. Lesch: What happened in this case was originally Judge Carter dismissed the case for one of the substantial federal questions and then went opt to the Circuit Court of Appeals and Judge Friendly instituted a temporary restraining order or continued the one the Judge Carter granted in effect held that there was substantial federal question and quoted the Poe v. Ullman case.

He then sent it back down for arguments on the preliminary injunction motion and it was only after we have established in the record in this case all of the facts that I am talking about now, but then the case came up to this Court with a full record where it is shown that there is no need for this system.

I believe we have also shown that the Federal Drug Abuse Prevention and Control Act has no triplicate prescription provisions Uniform Controlled Substances Act has no triplicate prescription, Provision 39 says that the Union has no such provision.

This Court has often held that where so many other states have no triplicate prescription or have no comparable provision in their statute that is also an indication that those provisions are unnecessary.

The fact is in this case that there has not been a scintilla of evidence and Mr. Greenwald for the State has not pointed too a scintilla of evidence that there was any need whatsoever for the patients’ names.

If there were some showing of need as there is not in this at that point the State may well condition use of a more effective mean which involves the danger to constitutionally protected privacy on the taking of all reasonable precautions which limit the risk.

So that is the point where the adequacy of the State Security System comes into place Justice Rehnquist in response to your prior question, but we do not reach to that point in this case and the Three-Judge Court did not reach it in this case because there was absolutely no showing.

Chief Justice Warren E. Burger: You are now on Mr. Jaffe’s time.

Mr. Lesch: In that case I would withdraw.

Thank you very much.

Chief Justice Warren E. Burger: Mr. Jaffe.

Argument of H. Miles Jaffe

Mr. Jaffe: Mr. Chief Justice and may it please the Court.

If I could go back to Mr. Justice Rehnquist’s question, we do admit that it is the difference in the extent and intrusiveness of the system that is the heart of this case, and the case really does not take off from the concurring opinion of Mr. Justice Powell in the Shultz case, where he says “At some point governmental intrusion upon these areas would implicate legitimate expectations of privacy.”

The key to this case is that unlike the decisions in Danforth or in Shultz where the reporting was not systematic and in fact was not properly challenged or as in the American Physicians case which was affirmed by this Court in the last term but not heard by this Court.

There is systematic reporting here of the names of literally hundreds and thousands of patients.

It is our belief, there comes a point at which the demand of the state for systematic reporting of absolutely innocent conduct becomes offensive, and in fact the intrusiveness of the conduct was seen at trial, because as Mr. Lesch’s comment this case went up and down, originally Judge Carter thought there was not substantial federal question.

It was reversed by the Second Circuit.

It came back down.

We asked for a temporary injunction and the Court said, no you have not shown us any real injury, but when we finally got to trial the witnesses who testified, testified to substantial intrusion into the doctor-patient relationship which is a part of this case.

It is the intimacy of the information that government is seeking part of the doctor-patient relationship.

Witnesses testified -- these witnesses it is true were innocent of past practices but they testified that the thought of having the State have all this information made them very uneasy or a doctor testified that he would not prescribe for his schizophrenic in one case.

I think that is Page 169 in record Dr. Bernice’s testimony, he would not prescribe for his schizophrenic patient these drugs because as all the other doctors testified, he felt he was required to inform the patient that the system existed and him name would be forward to Albany.

He then felt that he is so informed this schizophrenic that would upset the very treatment which he in fact intended to prescribe for the schizophrenic.

So, here we are asking the Court to address itself to the questions which were not raised in Danforth or Miller where there was investigation.

But the question where there is in effect the Dragnet before and not in investigation afterward and that is the distinction.

It is fine for the State to investigate and we are for it and we do not believe that drug abuse is a good thing we can say it is a bad thing.

Now, we think doctors should have to report and we do think that doctors should in fact -- the computer can print out exactly what the doctor’s uses.

That is to say if one doctor is prescribing hundreds of thousands of pills a month that whatever would be the right, a quantum.

You can then go and investigate that doctor and the doctor is requiring a statute, and we do not objected it, the doctor is requiring the statute to keep those records and then when the State goes and conducts the investigation.

Unknown Speaker: But now the State does not need probable cause under the preexisting system to go and inspect the doctor’s records.

Mr. Jaffe: And does not here, and that is not challenged in this case.

What is challenged in this case is the centralization and the data processing implications that are taking place.

In this case whether it be medical information, the next we will have is income, in the Valeo case we have political contributions for which a reason was found there which we think was compelling.

The difference here is that the State’s showing is totally inadequate.

We may, the next case we may get is the filing of first of all fingerprints which is true, if we ask any single citizen to come forward at anytime we could probably get his fingerprints.

It is a systematic, dragnet, prior to any criminal conduct.

We have totally innocent patients here who are compelled to be part of the system.

No one goes to get a Schedule II drug because he wants to be happy about it.

He is a patient and he is presumably sick.

Unknown Speaker: Will you compel that be a part of the system when you are born, in most states, because of the birth certificate filed and forwarded to the state registrar statistics.

Unknown Speaker: Exactly we would say to the Court there should be limits on the degree to which a state can then start cataloging every activity.

Mr. Jaffe: But why not draw the line before that.

Why not say no registration of birth certificate?

Mr. Jaffe: Because the registration of birth certificate has a clear need.

Unknown Speaker: Then you are saying that in every one of these cases where the state does not require any kind of data the state have to show a compelling interest or a clear need or something like that.

Mr. Jaffe: Your Honor, that is not as hard as Your Honor makes it sound.

In fact, usually the states can show a very clear reason for spending millions of dollars taking in 125,000 prescriptions per month, and in fact the need in the gunshot case and the need in the venereal disease those needs are clear.

But that comes at times when we’re dealing with medical records, when the need -- and in this case we get to that point.

This case was a tried, this case does not come on a motion to dismiss, does not come up on summary judgment.

It comes up after three judges, originally rather skeptical, heard the testimony of these patients and what they said was, in a year or twenty months that this system was in effect, we had one case in which there is a suspect.

There has not been any showing that this system has acted as a deterrent.

We have no showing at all of any need here and what we preserve as we rule against the name requirement we preserve it is the most comprehensive system of regulation of any drug regulation in the country, namely everything must be filled on, on a New York State Form, it must include --

Unknown Speaker: Mr. Jaffe, let me just ask one question that is running through my mind.

If you look at it from the point of view of the individual whose privacy is being invaded because his name is being put in a file at some place.

Does it matter to him whether somebody wants to find out whether he is taking these drugs or not?

Whether the person trying to find out goes to the corner pharmacist and says they have any information about this man or if he goes to Albany?

Mr. Jaffe: Yes, I mean there is --

Unknown Speaker: I mean presumably he would patronize the local drugstore I suppose.

Mr. Jaffe: Sure, it does make a difference, because most people recognize this point as the possibility of use.

If the in fact information is centralized within the control of the government.

It is unconstitutional.

Unknown Speaker: Well, I suppose the individuals concern only right is when he is under investigation.

Mr. Jaffe: No, in other words he is worried about the fact that he takes a dangerous drug and he says while I may run for office next year, and the Governor in the state in fact can simply push the button on the computer and find out, among other things, who my business associates are because we have a list of those people and who my drugs are because we have list of those people.

In other words that this Court would not find --

Unknown Speaker: Well, couldn’t the Governor go to the corner pharmacy and that a look and he will find the drugs there?

Mr. Jaffe: Well, yes the Governor could carry out an extensive investigation.

Unknown Speaker: Well, he is just investigating one person by your hypothesis, and the information is available either in Albany or in the local pharmacy.

Mr. Jaffe: Yes, but the facility here -- it is true that --

Unknown Speaker: It is easier to go to Albany than it is to go to corner drug shop.

Mr. Jaffe: It is easier to push the computer button and find out where all of our citizens have been and what all our citizens do and who their associations are and who their political contributions are and so forth and so on.

But are we going to answer the state to make a collection of political contribution without a showing that in fact there is a reason to that.

Unknown Speaker: And to income tax, federal income tax returns are supposed to be of the utmost secret category of the privacy and yet we know it is a practical matter that they are leaked especially in recent years.

Now, would you regard that as a flow in it?

Mr. Jaffe: That would be exactly on point Your Honor.

I would say if that if Federal Income Tax will not necessary then we should not have the forms.

We all know it is necessary and therefore we do not object it.

Unknown Speaker: But don’t you think self-control is necessary?

Mr. Jaffe: Yes I do, but here we have a showing after trial which is the difference in this case that the State has gotten literally nothing after trial, shown nothing as the (Inaudible), and we say as Mr. Justice Powell implicated into the Shultz case, there comes a point when the material turned up by a system which includes hundreds of thousands of prescriptions per month almost when it is going too far, and as Your Honor points out where you find any immediate need as in the income tax area.

We would then uphold the system, where for example, you might even fill in the income tax place you went too far as in requiring everybody to report every check that he has and it is true that the IRS could get every check.

But we would still not want the government to have a record of every check, and checks or less personal if one looks at most than are the medical records of people here.

Interestingly in the Danforth case, in the Shultz case and in the Association of American Physicians, none of the regulations required the centralized reporting of names.

Thus the statute of Danforth does not require the central reporting, and the regulations do not include on the form the name.

That is the distinction that we called to the Court’s attention an urge, and we urge the Court to examine carefully the findings of the lower court and their narrowness perhaps not the language but the narrowness of that point, which said where there is no product from the system and where the system is requiring the massive centralization there we think that the diminution of constitutionally protected right is too great.

Or put otherwise, when you have regulation of this sort precision must be touched up.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Jaffe.

Do you have anything further Mr. Greenwald?

Rebuttal of A. Seth Greenwald

Mr. Greenwald: Well I would, Your Honor.

Chief Justice Warren E. Burger: You have a couple of minutes.

Mr. Greenwald: Yes, I think I did reserve a couple of minutes and I wish to emphasize that the counsel for the Roe appellees stated that into departmental communication it allowed under the statute.

That is basically erroneous.

The confidentiality provision in this law once again ignored, but District Court provides that patient identity is only available to the Department of Health to investigate as people who are responsible for the enforcement of Article 33 or other agencies that license people who deal in these controlled substances.

But the example given by the Attorney for the patient appellees about the Governor getting information is absolute nonsense.

The Governor would be violating the law if he went to get this information, and I think I can fairly state that under this law the Commissioner of Health who I admitted to the point the Governor, has a legal duty and a legal right to sell the Governor -- this again happened once again a hypothetical -- to get out of his office, and of course, all this is in the height of hypothesis.

Now, I also would like to emphasize that the confidentiality provision here is one of the most carefully drawn I think under analysis, and when you speak about income tax record, indeed the reason you speak, you find leaks perhaps of income tax record is, that the law allows those records that he provided to any government official.

This is not the case in the operation of our filing triplicate prescriptions.

There is also this factor of lack of results, claim of one or two in 20 months of operation.

In point of fact and I think I have found it in the record.

In point of fact we did not have the capability of printing out patient names, of extracting patient names from the computer until about roughly August, 1974 and there was a trial in December.

I think it is irrelevant to the constitutionality of this Section whether we have got one report, 50 reports, or 150 reports, but basically you had a system in its infancy.

There are of certain priorities in the Department Of Health.

Constitutionality of a statute on its face - and that is what we are involved here -- can not depend on the efficiency of proper operation by the appellant.

Indeed, as I have cited in my Reply Brief, if there had been a preliminary injunction, let us say, for example grants against this system and there was one for about four or five or six months, you would have no results to discuss.

It is rather obvious that the constitutionality of this statute depends on whether it is reasonably directed to accomplishing its purpose the discussion --

Justice Thurgood Marshall: Mr. Greenwald, if we could find a way to send this case back, then what do you think as (Inaudible) New York is, they might forget about it?

Mr. Greenwald: I would submit that there is no necessity.

I do not think there is any necessity to send this case back.

It has been mentioned by the amici curiae brief, because it is rather obvious that the record in later months showed we were getting all types of reports.

But I submit that that is a totally erroneous test of constitutionality.

That would mean that in California if they got proper results or results to impress District Court Judge is constitutional in California.

If in Idaho they might get only ten because small (Inaudible) no need.

Chief Justice Warren E. Burger: I think you have answered the question of counsel.

Mr. Greenwald: Thank you.

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