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Legal news from Thursday, December 9, 2010




Virgina Tech unlawfully failed to notify students of shooting: report
Jaclyn Belczyk on December 9, 2010 3:48 PM ET

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[JURIST] Officials at Virginia Tech [university website] acted unlawfully by waiting too long to notify students during the 2007 shootings [NYT backgrounder; JURIST news archive], according to a report [text, PDF; materials] released Thursday by the US Department of Education [official website]. According to the report, Virginia Tech officials failed to comply with the Clery Act [20 USC § 1092(f) text], which requires universities to disclose crime statistics and communication information about campus safety. The report found:
Virgina Tech failed to comply with the requirements relating to a timely warning ... in response to the shootings on campus on April 16, 2007. There are two aspects to this violation. First, the warnings that were issued by the University were not prepared or disseminated in a manner to give clear and timely notice of the threat to the health and safety of campus community members. Second, Virginia Tech did not follow its own policy for the issuance of timely warnings as published in its annual campus security reports.
Education Secretary Arne Duncan noted [press release], "[w]hile Virginia Tech failed to adequately warn students that day, we recognize that the University has put far-reaching changes in place since that time to help improve campus safety and better protect its students and community."

Virginia Tech has faced several lawsuits over the shooting incident. Last month, a Virginia circuit court judge ruled that a lawsuit by two families whose children were killed in shooting can proceed against school administrators, despite their claims of sovereign immunity. The lawsuit [JURIST report], seeking $10 million in damages, accuses the administrators of gross negligence for failing to warn students of the shootings immediately after the first shooting at 7:15 AM. It is being brought by two families who opted out of an $11 million dollar settlement [JURIST report] to which 24 of the 32 victims' families agreed in June 2008. The settlement gave each family $100,000 plus medical expenses and provided for meetings with Virginia Governor Tim Kaine and Virginia Tech administration and police officials. Many of the families had considered wrongful death and personal injury lawsuits against the state of Virginia after an independent state panel reported that different school policies could have avoided some of the deaths, but the settlement terms required the families to release their claims. In December 2007, Congress passed by voice vote an act that closes a loophole [JURIST report] that allowed Virginia Tech shooter Seung-Hui Cho to purchase firearms despite a court order mandating psychiatric treatment. The Virginia Tech shootings left 33 people dead and 25 wounded in the deadliest shooting incident in US history [WP backgrounder].




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Thailand court dismisses second case against ruling party
Jaclyn Belczyk on December 9, 2010 2:26 PM ET

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[JURIST] Thailand's Constitutional Court [GlobaLex backgrounder] on Thursday dismissed a second case against the ruling Democrat Party [party website] for alleged misuse of campaign funds. The court voted 4-3 to dismiss the case [Bangkok Post report] on procedural grounds, allowing the ruling part to escape dissolution. If the suit had been successful, the Democratic Party would have been dissolved and party leaders, including current Prime Minister Abhisit Vejjajiva [official website], would have been banned from participating in politics for five years. A separate suit was dismissed [JURIST report] last month, also on procedural grounds.

The Constitutional Court began hearing the first case [JURIST report], which centered around the misuse of an EC electoral grant where the EC alleged funds from the grant had been transferred to senior party officials in violation of the Political Party Act [LoC Backgrounder]. The EC called for the dissolution of the ruling party [JURIST report] in April for failing to report donations from the business community and alleged misuse of the funds. The commission's decision came amid some of the deadliest political clashes Thailand has experienced in nearly two decades, as Thai protesters, known as red shirts [BBC backgrounder; JURIST news archive], called for new elections and Vejjajiva's resignation.




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Federal judge dismisses challenge to California affirmative action ban
LaToya Sawyer on December 9, 2010 2:15 PM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Wednesday dismissed [opinion, PDF] a challenge to California's affirmative action [JURIST news archive] ban in public university admissions. The ban, approved by voters in 1996 as Proposition 209 [text], prohibits discrimination or preferential treatment to any individual on the basis of race, sex, national origin and ethnicity in the areas of public education, public employment and public contracting. The lawsuit was filed by the Coalition to Defend Affirmative Action, By Any Means Necessary (BAMN) [advocacy website], a group that supports full integration and equality of minorities and marginalized groups into American society. BAMN and other Proposition 209 opponents argued that the ban violates the Equal Protection Clause [Cornell LII backgrounder] of the US Constitution. Plaintiffs had cited [brief, PDF] the 2003 US Supreme Court [official website] case Grutter v. Bollinger [opinion text], which upheld affirmative action at the University of Michigan Law School. In Wednesday's ruling, the judge declined to follow in Michigan's footsteps, noting that the Supreme Court only suggested using race as preference and did not require it, so California may use whatever method it desires. Plaintiffs plan to appeal.

Proposition 209 was upheld [JURIST report] by the Supreme Court of California [official website] in August. In addition to California, five states have adopted affirmative actions bans. Last month, Arizona voters [JURIST report] approved [results] Proposition 107, amending the state constitution [HCR 2019 text] to ban affirmative action programs in state government agencies. In November 2008, ballot measures banning affirmative action failed in Colorado and passed in Nebraska [JURIST reports]. In 2006, Michigan voters approved a similar state constitutional amendment, which was upheld [JURIST reports] in March 2008 by a federal district judge in a lawsuit alleging that such an affirmative action ban violated the US Constitution.




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Federal judge dismisses New Jersey health care suit
Andrea Bottorff on December 9, 2010 12:55 PM ET

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[JURIST] A judge for the US District Court for the District of New Jersey [official website] on Wednesday granted a motion to dismiss a lawsuit [case materials] brought by a physician organization challenging the constitutionality of the recently enacted health care reform law [HR 3590 text; JURIST news archive]. Nonprofit New Jersey Physicians, Inc. [advocacy website] filed the complaint [text, PDF] in March, arguing that the new federal health care law goes beyond the enumerated powers allowed in the US Constitution [text] by penalizing individuals who choose not to buy health insurance and preventing doctors from receiving payments directly from patients. The group also stressed that it supports many of the health insurance coverage provisions in the new law and only opposes parts of the law they believe hurt the health care industry [press release], such as reimbursement methods. However, Judge Susan Wigenton ruled that the law does not cause the alleged harms and does not violate the Constitution. The New Jersey Physicians group intends to appeal the case [Bloomberg report] to the US Court of Appeals for the Third Circuit [official website].

The recently enacted health care reform law has faced numerous lawsuits over the last few months. Last week, a judge for the US District Court for the Western District of Virginia [official website] dismissed [JURIST report] a health care lawsuit filed by Liberty University [academic website]. In October, a judge for the US District Court for the Northern District of Florida [official website] denied a motion to dismiss [JURIST report] a lawsuit brought by a group of attorneys general challenging the constitutionality of the health care law. The lawsuit [complaint, PDF], filed in March and joined by 20 states [JURIST reports] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report], seeks injunctive and declaratory relief against what it alleges are violations of Article I and the Tenth Amendment of the Constitution, committed by levying a tax without regard to census data, property or profession, and for invading the sovereignty of the states. A week earlier, a federal judge in Michigan ruled [JURIST report] that the law is constitutional under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.




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House approves immigration reform bill
Andrea Bottorff on December 9, 2010 11:43 AM ET

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[JURIST] The US House of Representatives [official website] on Wednesday approved a bill [legislative materials; text] that would provide a path to permanent resident status for some high school graduates who enter the military or enroll in a college degree program. The Development, Relief, and Education for Alien Minors Act, or DREAM Act, would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [text, PDF] to allow certain children of illegal immigrants an opportunity to achieve legal residency. The bill was previously defeated in Congress in 2007, but reintroduced [JURIST reports] in October by US Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) [official profiles] as part of the Comprehensive Immigration Reform Act of 2010 [legislative materials], which includes several bills that, if passed, would greatly change US immigration [JURIST news archive] law. Rights groups like the Mexican American Legal Defense and Education Fund (MALDEF) [advocacy website] have praised the vote, highlighting the need to keep young people in the country to advance ingenuity in high education and service in the military. Thomas Saenz, President and General Counsel for MALDEF, further said that the bill "vindicates longstanding national, constitutional values to embrace newcomers and to reject cross-generational punishment." The Senate was originally scheduled to vote on the bill Thursday, but the vote was canceled, which likely pushed the Senate's consideration of the bill into early next year.

Illegal immigration continues to be a concern for local governments, as the federal government has failed to pass comprehensive immigration reform legislation. Earlier this week, the US Supreme Court heard oral arguments [JURIST report] on whether an Arizona statute imposing sanctions on employers that hire illegal immigrants is preempted by federal law. Last month, the US Court of Appeals for the Ninth Circuit heard arguments on another controversial Arizona immigration law, SB 1070 [materials, JURIST news archive]. Also in November, the Nebraska Supreme Court declined to rule [JURIST report] on a local ordinance banning the hiring, harboring or renting of property to illegal immigrants. In September, the US Court of Appeals for the Third Circuit ruled [JURIST report] that two ordinances passed by the city of Hazleton, Pennsylvania, making it more difficult for illegal immigrants to live or work in the town, are unconstitutional.




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Obama signs bill funding minority farmer settlements
Jaclyn Belczyk on December 9, 2010 11:04 AM ET

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[JURIST] US President Barack Obama [official website] on Wednesday signed [press release] a bill [HR 4783 materials] authorizing funds for a settlement with minority farmers over discrimination claims. The settlements include $3.4 billion to resolve claims that the Department of the Interior (DOI) [official website] mismanaged funds [DOI materials] held in trust for American Indian landowners [JURIST news archive] and $1.2 billion for African American farmers claiming they suffered racial discrimination in US Department of Agriculture (USDA) [official website] loan programs. Obama said, "[w]hile I am pleased that this Act reflects important progress, much work remains to be done to address other claims of past discrimination made by women and Hispanic farmers against the Department of Agriculture as well as to address needs of tribal communities." The House of Representatives approved the settlement last week after it was approved by the September [JURIST reports] in November.

The settlements arose from two cases. Eloise Cobell [plaintiff website] originally filed litigation in 1996 related to DOI's alleged mismanagement of the Indian Trust, which was established by Congress in 1887 to hold proceeds from government-arranged leases to Indian lands. Although it was determined that the US government had not engaged in fraud, it was held that DOI unreasonably delayed accounting of the trust. A settlement was reached [JURIST report] last December. In 1999, black farmers alleged in Pigford v. Glickman [BFAA backgrounder] that they were being denied USDA farm loans or forced to wait longer for loan approval than were non-minority farmers. The USDA and Department of Justice (DOJ) [official website] announced a $1.2 billion settlement [JURIST report] in February.




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House approves bill preventing US trial of Guantanamo detainees
Jaclyn Belczyk on December 9, 2010 9:09 AM ET

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[JURIST] The US House of Representatives [official website] voted 212-206 [roll call vote] Wednesday in favor of a defense spending bill [HR 3082] that includes a provision preventing Guantanamo Bay [JURIST news archive] detainees from being transferred to the US for trial. The legislation would block Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and the other accused 9/11 conspirators from being tried in a US civilian court. US Attorney General Eric Holder [official website] announced last year that Mohammed would face a civilian trial, drawing intense criticism and leading the Obama administration to reconsider the decision [JURIST reports]. The bill must still be approved by the Senate. Holder sent a letter [text, PDF] Thursday to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell urging them not to include the provision in the spending bill. If passed, the ban would remain in place until September 30, the end of the current fiscal year.

In the first civilian trial of an ex-Guantanamo detainee, a federal jury convicted [JURIST report] Ahmed Khalfan Ghailani [GlobalSecurity profile; JURIST news archive] last month on only one of 285 counts of conspiracy, murder and attempted murder for his involvement in the 1998 bombings of US embassies [PBS backgrounder; JURIST news archive] in Tanzania and Kenya. While the Obama administration viewed the conviction and 20-year minimum sentence as a victory, opponents have cited the acquittals as evidence that civilian courts are inadequate venues for trying terror suspects. Several scholars have nevertheless maintained that federal courts are capable of serving justice [JURIST op-ed; JURIST op-ed]. Upon taking office, President Barack Obama pledged to close the detention facility at Guantanamo Bay [JURIST report] by January 2010, but he has been met with strong opposition to transferring detainees to US soil




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