Court decisions will affect how you live

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  May 27, 2002 at 5:43 PM
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WASHINGTON, May 23 (UPI) -- The Supreme Court is poised to begin its final month of the term with 31 cases still to be decided.

Some of the cases are extremely controversial. Several will determine how American families live a significant portion of their lives, how they educate their children and how their insurance companies handle their medical problems.

Among the issues still to be resolved before the justices recess for the summer in late June or early July:

-- School vouchers to support students in religious schools.

-- Random drug testing of school children who participate in extra-curricular activities, even if there is no indication that the students are involved in drugs.

-- Execution of the mentally retarded.

-- Free speech rights for annoying people who come to your door.

-- The accountability of health maintenance organizations, or HMOs.

If comments from the bench are a reliable indication -- sometimes, they are not -- the Supreme Court may finally be ready to allow public funding for religious education, at least indirectly.

In argument earlier this year, Justices Sandra Day O'Connor and Anthony Kennedy both indicated they could support a school voucher system, even if the money contained in the vouchers was used for a religious education.

O'Connor and Kennedy are moderate swing votes on a court that often splits 5-4 along ideological lines, with either of the moderates casting the deciding vote.

Their comments came as the Supreme Court heard argument in a Cleveland case.

The case was actually three combined into one (No. 00-1751, Supt. Zelman et al vs. Simmons-Harris et al; No. 00-1777, Hanna Perkins School et al vs. Simmons-Harris et al; and No. 00-1779, Taylor et al vs. Simmons-Harris et al), but all three involve a pilot voucher program in Cleveland.

The program grew out of a crisis in the Cleveland schools, considered substandard in the mid-1990s. In 1995, a federal judge overseeing a Cleveland desegregation case ordered the state superintendent to take over control of the local school district.

Ohio's General Assembly then adopted the pilot voucher project, applying it to any school district taken under the jurisdiction of a federal court. As the General Assembly well knew, the Cleveland school district was the only such district in Ohio.

The program gives private school scholarships to Cleveland school district children from kindergarten through the eighth grade, and requires participating private schools to cap their annual tuition at $2,500.

Though the program was designed to give scholarships to non-sectarian and sectarian schools, 96 percent of those enrolled in 1999-2000 used the money to attend religious schools.

Of the 56 schools registered to participate in the program for that school year, 46, or 82 percent, were religious.

Earlier in the case, a divided appeals court panel ruled 2-1 that the program violates the Constitution because it "has the primary effect of advancing religion" and "constitutes an endorsement of religion and sectarian education."

The Supreme Court must decide whether to reverse or affirm the appeals court decision, or moderate it in some way. The high court's ruling should come within the next several weeks.

A second landmark case involving the nation's schools also must be decided by the end of the term.

At issue is whether schools can conduct random drug testing of any student who participates in extracurricular activities.

The case comes out of Tecumseh, Okla.

Tecumseh High School offers a broad variety of extracurricular activities, including band, choir, color guard, Future Farmers of America and Future Homemakers of America.

Besides students in those activities, the random drug testing included students in athletics and cheerleading.

The school is in a rural area about 40 miles from Oklahoma City.

In its petition to the Supreme Court, the school board said there was a "long-standing problem of drug-use among students" in Tecumseh's school district.

In response, school officials have used "surveillance cameras, drug education, drug dogs and increased security personnel," but drug use "has not been eliminated."

The school board first discussed random drug testing of students during the 1997-1998 school year. The program actually began in September 1998.

However, not everyone supported the plan.

Three students and their parents filed suit in federal court against the random testing in 1999. The students did not include athletic teams in their challenge since the Supreme Court approved random testing of school athletes in 1995, with a majority of the justices saying the athletes had already given up much of their privacy in the locker room anyway.

Relying on the Supreme Court's 1995 precedent, a federal judge ruled for the school district. Then a federal appeals court panel, relying on the same Supreme Court decision, reversed the judge 2-1.

The appeals court said 1995's Acton vs. Vernonia School District required the courts to balance competing interests.

The school district had a compelling interest in stopping the student use of drugs.

But the students had a compelling interest in maintaining their privacy, the appeals court said. Moreover, the Fourth Amendment bans "unreasonable" searches.

The appeals court said the school district just had not done its homework.

"Any district seeking to impose a random suspicion-less drug testing policy as a condition to participation in a school activity must demonstrate there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, (to) such (an extent) that testing that group of students will actually redress its drug problem," the appeals court majority said.

When argument in the case (01-332, Bd. of Ed., Pottawatomie County vs. Earls, Lindsay et al) was heard earlier this year, Kennedy indicated strongly from the bench that he supported the drug testing policy.

Another controversial case that must be decided in the upcoming weeks is the constitutionality of executing the mentally retarded.

Thirty-eight states have death penalties. With recent legislation, North Carolina has joined the 13 death-penalty states that specifically do not execute the mentally retarded.

However, Virginia has no such ban.

In the case before the Supreme Court(No. 00-8452, Atkins vs. Virginia), Daryl Renard Atkins was convicted of robbing and shooting to death Eric Nesbitt, who had driven up to a convenience store in York County, Va., in August 1996.

Atkins and a friend had been "drinking and smoking weed" and were looking for more spending money, according to court records.

Nesbitt was kidnapped, forced to use his bankcard and then killed in a wooded area.

Atkins was convicted and sentenced to death.

After his death sentenced was reversed by the Virginia Supreme Court on a technicality, he was again sentenced to death by a state judge who found him a continuing threat to society.

In his petition to the Supreme Court, Atkins's court-appointed lawyers said his case mirrors those of other mentally deficient death row inmates.

"Pretrial intelligence testing of Daryl Atkins showed that had ... (an) IQ of 59 ... The state's mental health expert testified that the testing and resultant IQ scores were correct."

Yet another Supreme Court case still to be decided will hit very close to home.

Do aggressive proselytizers have a free speech right to knock on your door and regale you, even though you live in a community that specifically bans such tactics?

Lawyers for Jehovah's Witnesses argued before the Supreme Court earlier this term that an Ohio community ordinance designed to keep them from going door to door is unconstitutional.

The ordinance requires a permit before anyone can advocate a cause in the manner favored by Jehovah's Witnesses -- knocking on every door they can and engaging whoever answers in a religious discussion.

"Jehovah's Witnesses consider it part of their individual responsibility to follow Jesus' example and go from house to house to speak to people about the Gospel of Christ," a Supreme Court petition for the church group said, "in imitation of Jesus himself going from door to door to teach people about his message."

But one person's religious practice may be another person's nuisance, and Jehovah's Witnesses have not been popular with the authorities in the Village of Stratton, Ohio.

Jehovah's Witness ministers associated with the congregation of Wellsville, Ohio, "have experienced difficulties with village officials," their petition said.

"In the early 1990s, a village policeman chased a group of Jehovah's Witnesses out of town, stating 'I could care less about your rights,'" the petition said.

Stratton's mayor personally confronted four female Jehovah Witnesses as they were leaving the village in 1998.

According to the petition, the mayor "told the Witnesses that they were not allowed to be in the village, that people had moved to Stratton with the understanding that they would not be bothered by Jehovah's Witnesses, and that, if they had been men, he would have taken them and put them in jail."

The Witnesses took their case to federal court. A federal judge ruled for the village in 1999.

Although a provision of the permit application was "onerous" -- requiring an applicant to supply a list of the houses he or she wants to visit -- the judge said village had agreed to provide the Witnesses with addresses, so he let that stand.

The judge did rule that only allowing door-to-door canvassing from 9 a.m. to 5 p.m. was unreasonable, and ordered that the ordinance be changed.

A federal appeals court eventually upheld the judge, saying the ordinance was "content-neutral" -- it applied to anyone wanting to go door to door, not just Jehovah's Witnesses -- and was not unconstitutionally broad.

The Jehovah's Witnesses then asked the Supreme Court to intervene, arguing in part that their free exercise of religion was being violated (No. 00-1737, Watchtower Bible and Tract etc. and Wellsville, Ohio, Congregation of JWs vs. Stratton).

The Supreme Court, however, agreed only to hear argument on whether an ordinance requiring a permit before going door to door, and requiring a canvasser to display that permit with the canvasser's name, violates the First Amendment's protection for anonymous pamphleteering and discourse.

The Supreme Court has consistently protected such anonymous interaction, most recently in 1995's McIntyre vs. Ohio Elections Commission and 1999's Buckley vs. American Constitutional Law Foundation.

An imminent Supreme Court ruling in another case (No. 00-1406, Chevron vs. Echazabal), will be closely analyzed by businesses of any size across the country.

At issue: Does the Americans with Disabilities Act, or ADA, force employers to hire disabled workers for a job, even when the position could cause injury or death to the worker?

A lower court has said yes, but the Supreme Court will make the final decision sometime within the next few weeks.

The ADA covers all workplaces with 15 or more employees. In general, the act bans discrimination against the disabled, and tells employers they must make a reasonable attempt to accommodate the disabled as customers or employees.

The case before the high court involves Mario Echazabal, who was employed by an independent contractor to work at the Chevron refinery in El Segundo, Calif.

Twice Echazabal tried to be employed directly by Chevron, and twice the company approved his employment on the condition he pass a physical exam.

Each time the employment offer was rescinded.

The first time, doctors found a liver abnormality and concluded that exposure to toxic fumes at the refinery would exacerbate it. The second time, doctors found he had significant liver damage, and that exposure to the chemicals at Chevron could harm or kill him, according to court records.

In 1996, Echazabal's personal physician wrote Chevron to say that the worker's Hepatitis C was not contagious and he could return to his job. However, Chevron told the contractor that Echazabal should not be employed at the refinery, and the contractor fired him.

Echazabal then filed suit against Chevron in state court, saying that the company had violated the federal Americans with Disabilities Act when it withdrew its 1995 work offer. Chevron successfully moved to have the case transferred to federal court.

There, a federal judge ruled for the company, saying under the ADA an employer may refuse to hire someone when the job would be a threat to the potential employee's health.

A federal appeals court reversed. The judges' panel ruled 2-1 that the ADA allows an employer not to hire someone when that person's disability is a "direct threat" to another worker, but does not allow an employer to refuse a job to someone whose own health would be threatened.

Chevron then asked the Supreme Court for review.

On another front, Congress and the White House have been squabbling over the passage of a patients' bill of rights for several years, but the Supreme Court is on the brink of ruling on HMO accountability, possibly as early as Tuesday.

At issue in the case out of Illinois is whether federal law pre-empts laws in 37 states requiring independent review when a medical procedure is denied by an HMO.

The Supreme Court dispute is at the exact center of the ongoing national political debate -- whether decisions by doctors regarding health care may be overridden by a health care provider, sometimes for economic reasons.

As do laws in 36 other states and the District of Columbia, Section 4-10 of the Illinois Health Maintenance Organization Act requires independent review when a patient's primary care doctor considers a proposed procedure to be medically necessary, but an HMO disagrees and denies coverage.

The patient may have the HMO's decision reviewed by an outside physician, and under the state law the HMO must abide by that physician's decision.

Under a health care plan sponsored by the employer of Debra Moran's husband, Rush Prudential HMO Inc. provides access to medical and hospital care.

In 1996, Moran sought treatment from Dr. Arthur LaMarre, a Rush-affiliated primary care doctor, for pain, numbness and decreased mobility in her right shoulder.

When physiotherapy did not relieve her symptoms, LaMarre sought advice from Dr. Julia Terzis, a Virginia surgeon who specializes in micro-reconstructive surgery. Terzis agreed with LaMarre that Moran's problems were caused by what is commonly called "pinched nerves" -- actually "nerve compression syndrome."

Terzis's surgery technique for relieving the compression is more complicated that normal procedures, according to court records, but the doctor felt Moran was a good candidate for the procedure.

After meeting with Terzis, Moran asked LaMarre to get approval from Rush for the procedure. However, LaMarre sent her first to see two Rush-affiliated thoracic surgeons, both of whom recommended more conservative surgery.

Moran persisted in asking for the Terzis procedure, and in October 1997 LaMarre asked Rush to approve it, adding that she would be "best-served" by Terzis's more complicated surgery.

Rush denied the request, saying the surgery was "out of network."

Even though administrative appeals failed, Moran underwent the Terzis surgery anyway in February 1998. She sent the bill for just under $95,000 to Rush.

When Rush did not act on the bill, Moran filed a complaint in Illinois circuit court asking for an order requiring Rush to appoint an independent physician to review her claim.

An independent physician eventually determined that the Terzis procedure was "medically necessary."

However, Rush successfully had the case switched to federal court, contending that the federal Employment Retirement Income Security Act of 1974 -- better known to human resources departments everywhere as ERISA -- pre-empts the state law.

ERISA does not provide for outside review; it simply allows a patient to file a civil suit in an attempt to recover medical expenses. The chances that Moran could prevail in a civil suit under an ERISA "denial of benefits" claim were remote, since the procedure was performed out of the HMO network.

A federal judge ruled for the HMO, saying ERISA pre-empted the state law requiring independent review. But a federal appeals court reversed, and Rush asked the Supreme Court for review.

Earlier this term, the Justice Department filed its own brief in the case (No. 00-1021, Rush Prudential HMO vs. Moran and Illinois) asking the Supreme Court not to hear argument, contending that Congress would soon enact a law that determines whether such denials of benefits can be independently reviewed.

But the Supreme Court ignored that advice, and took the case for argument.

Though Congress still has not acted, the Supreme Court will, handing down a ruling within the next few weeks.

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