Supreme Court Watch By Beate Bloch A sharply divided Court issued several major decisions before its summer recess. This issue's column will discuss the long-awaited term limits decision, the school drug-testing decision, a voting rights case, and three First Amendment decisions. Reserved for the next issue is discussion of other decisions, regarding, inter alia, affirmative action, school desegregation, preemption, and taxation. Article I In U.S. Term Limits, Inc. v. Thornton, 63 U.S.L.W. 4413 (decided May 22), the Court, 5 to 4, held that states may not impose term limits on members of Congress. Arkansas Constitutional Amendment 73 provided that a three-term representative or a two-term senator could not have his or her name placed on the ballot for the House or Senate. Justice Stevens' opinion for the Court ruled that the age, citizenship, and residence requirements set forth in Article 1, Sections 2 and 3, for representatives and senators were exclusive. The Court relied on Powell v. McCormack, 395 U.S. 486 (1969), which held that Congress could not impose additional qualifications for its own members. The opinion rejected the argument that this was among the "reserved" powers of the states. The Tenth Amendment "could only 'reserve' that which existed before," and the states could not have established qualifications for Congress before the Constitution was ratified. The Constitution created a new national government, with a uniform national system. The right to choose their representatives belongs to the people, and not to the states. The opinion supported its conclusion with a lengthy historical review of the circumstances surrounding the adoption and ratification of the Constitution, relevant congressional proceedings, and state practices following ratification. The Court, recognizing the political reality that write-in candidacies rarely succeed, ruled that Amendment 73 was not a "time, place, and manner" regulation, but "an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly." Justice Kennedy, in a concurring opinion, stressed the national character of the new government established by the Constitution. Justice Thomas's dissenting opinion, joined by the Chief Justice and Justices O'Connor and Scalia, thought that the Arkansas amendment came within the reserved powers of the states under the Tenth Amendment, and that, moreover, it was a "time, place and manner" regulation rather than a qualification. Fourth Amendment In Vernonia [Oregon] School District 47J v. Acton, 63 U.S.L.W. 4653 (decided June 26), the Court, 6 to 3, upheld the school district's Student Athletic Drug Policy, which authorizes random drug testing of students who participate in school athletic programs. Students were tested at the beginning of the season for each sport; then the names of 10 percent were randomly drawn each week for testing. Justice Scalia's opinion for the Court first confirmed that, under Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), urinalysis was a "search" subject to the Fourth Amendment and must, therefore, be reasonable. Here, there were "special needs" increased drug use, accompanied by disciplinary problems and increased risk of sports-related injury that dispense with the requirement of a warrant. The opinion noted that student athletes have low legitimate privacy expectations; and that, by choosing to participate in sports, they "voluntarily subject themselves to a higher degree of regulation than that imposed on students generally." They must undergo a pre-season physical (which includes a urine sample), have insurance coverage or sign a waiver, maintain a minimum grade point average, and comply with special rules. Thus, "students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy." Here, the intrusion on privacy is minimal. Urinalysis is limited to drugs, and student privacy is protected; the penalty is undergoing treatment, regular testing, or being barred from participation in sports. Justice Ginsburg concurred because the decision was limited to voluntary participants in school athletics. Justice O'Connor, joined by Justices Stevens and Souter in dissent, pointed out that suspicionless searches are generally regarded as per se violations of the Fourth Amendment, and that the anecdotal evidence cited in support of the rule indicated that suspicion-based testing would probably be sufficient. Voting Rights In Miller v. Johnson, 63 U.S.L.W. 4726 (decided June 29), the Court, again 5 to 4, invalidated Georgia's redistricting plan under the Equal Protection Clause. The plan, designed to create another majority district for minorities, had been required in order to obtain the necessary pre-clearance from the Department of Justice. Justice Kennedy ruled for the Court that "[l]aws classifying citizens on the basis of race cannot be upheld unless they are narrowly tailored to achieving a compelling state interest." Justice Stevens, dissenting, thought the plaintiffs could show no legally cognizable injury. Justice Ginsburg, joined by Justices Stevens, Breyer, and Souter, dissented separately because race was not the only factor considered in the plan. First Amendment The Court again split 5 to 4 in Rosenberger v. Rector and Visitors of the University of Virginia, 63 U.S.L.W. 4702 (decided June 29), which involved the interaction between freedom of speech and the Establishment Clause. The University of Virginia authorizes the payment of outside contractors for the cost of printing student publications. A student group seeking funds for the payment of contractors must become a "Contracted Independent Organization" (CIO). Some CIOs can get funds from the Student Activities Fund (SAF), which is financed by a fee of $14 per semester from each full-time student. Among the activities excluded from SAF support are religious activities which "primarily promote[] or manifest[] a particular belief in or about a deity or an ultimate reality." Wide Awake Productions (WAP), which qualified as a CIO, publishes Wide Awake: A Christian Perspective at the University of Virginia. The university refused to pay the printing costs of the publication because it was a religious activity within the meaning of the rules. This suit under 42 U.S.C. . 1983 followed, alleging violation of the group's rights to freedom of speech and the press, the free exercise of religion, and the equal protection of the laws. The Fourth Circuit, affirmed the district court's decision, found the university's exercise of its discretion justified by the "compelling interest in maintaining strict separation of church and state." The Supreme Court reversed. Justice Kennedy, for the Court, comparing the Student Activities Fund (SAF) to a public forum, held that the regulation violates the right of free speech. He found the university's exercise of its discretion was not based on content, but on viewpoint. Access to funds on a religion-neutral basis does not violate the Establishment Clause. Under the university's regulation, public officials must "scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief." Thus, the rule was not only a denial of free speech, but "would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires." Justices O'Connor and Thomas filed concurring opinions. Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented because: "The Court is ordering an instrumentality of the State to support religious evangelism with direct funding," in "flat violation of the Establishment Clause." In Florida Bar v. Wait for It, Inc., 63 U.S.L.W. 4644 (decided June 21), the Court again 5 to 4, but with a slightly different split upheld a Florida bar rule prohibiting personal injury lawyers from sending direct-mail solicitations to victims or relatives for thirty days following an accident or disaster. Justice O'Connor, for the Court, noted that lawyer advertising is protected commercial speech. The protection is not absolute, but restrictions are subject to "intermediate scrutiny." If the speech does not concern unlawful activity and is not misleading, the government must show (1) a substantial interest supporting the regulation; (2) that the restriction materially advances that interest; and (3) that the regulation is "narrowly drawn." The Florida Bar Rules meet these criteria. The bar's interest is substantial; a two-year study showed that the prohibited direct-mail solicitation offended people and cast the profession in a bad light. The Court found the Florida rule "reasonably well tailored to its stated objective of eliminating targeted mailings whose type and timing are a source of distress to Floridians, distress that has caused many of them to lose respect for the legal profession." The opinion pointed out that other forms of lawyer advertising were permitted. Justice Kennedy's dissenting opinion, joined by Justices Stevens, Souter, and Ginsburg, termed the rule censorship. He questioned whether the state's interest was substantial, and thought the Florida study didn't support its conclusions. The dissent stressed that accident victims need legal help. Capitol Square Review and Advisory Board v. Pinette, 63 U.S.L.W. 4684 (decided June 29), involved a 10-acre, state-owned plaza surrounding the Statehouse in Columbus, Ohio, used for speeches, gatherings, festivals, etc. The Board regulates public access. In 1993, the Board authorized the state to put up its annual Christmas tree, and granted a rabbi's application to erect a menorah, but denied a Ku Klux Klan application to place a cross on the Square, claiming that granting the permit would violate the Establishment Clause. The Klan obtained an injunction, and the Board permitted the Klan to erect the cross. The Supreme Court affirmed, 7 to 2. Justice Scalia's opinion for the Court was joined by the Chief Justice and Justices O'Connor, Kennedy, Souter, Thomas, and Breyer. The Court agreed that the Establishment Clause "is a state interest sufficiently compelling to justify content-based restrictions on speech." In this case, however, because the property is "a full-fledged public forum," granting the permit did not amount to sponsoring a religious group's activity. Justice Thomas, concurring, doubted whether this was truly an Establishment Clause case, because the KKK cross was not purely a religious symbol, but rather "a symbol of hate." Justice O'Connor, in a concurring opinion joined by Justices Souter and Breyer, thought Justice Scalia took too narrow a view of the Establishment Clause. There should be a sign disclaiming government sponsorship or endorsement. Justices Stevens and Ginsburg filed separate dissenting opinions. Beate Bloch is a legal writing consultant in Washington, DC.