JOHN HOCKENBERRY: We begin today with the Supreme Court. The court will hear arguments on two cases this week that will consider civil rights. Today’s case considers a young woman suing her Arizona school district for strip-searching her after she was suspected of having prescription strength ibuprofen. The other will be heard tomorrow, brought by white firefighters and one Latino from New Haven; it’s all about affirmative action. Here to discuss the Supreme Court cases and also what looks like sort of a tantalizing theme in the justice department under Eric Holder’s approach to the court is Kenji Yoshino, he’s the Chief Justice Earl Warren Professor of Law at NYU law school. He’s right here in the Takeaway studio. Kenji, thanks for coming back to the program.

KENJI YOSHINO: Thanks so much for having me again, John.

JOHN HOCKENBERRY: Let’s talk about the specific facts of these two cases, and then I think the themes and the strategy, the delicate relationship between the justice department and the court, at least in the glimpses that we have so far is a pretty interesting discussion. First of all, the case that’s going to be heard today.

KENJI YOSHINO: Yes, that case is Safford v. Redding, and that’s a case, as you said, where a 13-year-old girl was strip-searched for having ibuprofen in a middle school. So, it’s a classic fourth amendment search-and-seizure case, and the standard is generally reasonable suspicion. So, what I find really interesting about this is that, on the one hand, this just seems like a complete outrage. On the other hand, this is an outrage that has been upheld by courts in other states, so the question was whether or not the school was on notice that it couldn’t do this.

JOHN HOCKENBERRY: Is this the Supreme Court’s first look at rights of search-and-seizure for middle school students and the state’s interest in maintaining order in a school setting?

KENJI YOSHINO: No, this has been a very, very long train of cases. The most relevant one with respect to public schools and kids and students has been this case called New Jersey v. TLO, and New Jersey v. TLO, which is a 1985 case, what the Supreme Court said was reasonable suspicion means that you have to have some suspicion at the outset, before you begin your search, and then the scope of your search has to be reasonable.

JOHN HOCKENBERRY: In general, the political sense about these cases, and, you know, watching cable television is perhaps not the best way of sensing what the prevailing mood of Americans is, but I think there is a sense that, hey, these schools need to be tough to crack down on troublemakers sort of thing. How does that get translated into the doctrine of law here, and protecting the rights of, in this case, the plaintiff, who seems to have a pretty good case?

KENJI YOSHINO: That’s a great question. I think the way in which the thumb on the scale gets put on for the school is for this reasonableness standard, which is a) contextual in nature and b) its kind of a term of art in the law for a very, very low level of review. This is something less than, let’s say, probable cause, which would be a much more stringent level of review the school would have to pass.

JOHN HOCKENBERRY: Now, if they thought she was carrying a knife or a gun, maybe I could see…but ibuprofen?

KENJI YOSHINO: Yeah, this is just completely outrageous. Essentially what she’s taking, or what she was accused of having, they did not actually find this on her, was a 400 mg tablet of ibuprofen, which her friend said that she had gotten from her. And so they were looking for more of it on her body. This is two Advil’s put together, so this is not something like ecstasy or any other kind of substance. But, in the school’s defense, the year before they had had this near fatal accident for a kid who had brought drugs into the school, and also the school officials are not pharmacologists, so they can’t look at a pill and say we know exactly what that is.

JOHN HOCKENBERRY: Right, and if students were drinking also in combination with other substances, it could be fatal, so you can see what the school’s interest might be here. Let’s move on to the affirmative action case and then I want to get into this interesting Eric Holder and the whole Department of Justice story.

KENJI YOSHINO: Absolutely. So, in Ricci v. DeStefano, what we have is some white and one Latino firefighters filing a reverse discrimination case, saying they were discriminated against because they were not African-American. And what the city of New Haven in response is saying is that look, what we have here is a test, written multiple-choice or written test I should say, and what we discovered with the test is that it weeded out a vast number of African-Americans, so that no African-American would have been eligible for a promotion after this test.

JOHN HOCKENBERRY: Now, it’s not as though that intent is in the test. Statistically that’s a consequence of the test, and it’s noted after the fact. That’s sort of the issue here, right?

KENJI YOSHINO: That’s exactly the issue, which is to say what the city is saying is that this is a neutral test with a grossly disproportional impact, impacting a group, namely African-Americans, so we believe this test is flawed. Now, I want to underscore here that under Title VII of the civil rights act in 1964, which is a federal law governing employment, if a test has a disparate impact that’s not on a protected group, the employer can only justify that if it’s business related, if it has a business justification, so it has to be related to a business necessity. And so, in this case what we’re trying to figure out is whether or not this test, whether or not the decision not to use the test was simply an attempt to comply with that federal discrimination law, of saying, this is a discriminatory test, we don’t want to use it, is what the city is saying, and the only reason we decided not to certify the results of that test is because we wanted to be in compliance with Title VII.

JOHN HOCKENBERRY: And so the plaintiffs are saying, hey, the test was fine. If it had been there, I would be a firefighter. What did you do this for?

KENJI YOSHINO: Exactly right. And again, the stories are heartbreaking because one of these firefighters, who was a white firefighter, was dyslexic, and he paid $1,000 to get this on audio tapes and was studying. Another firefighter was in a hospital room while his child was being delivered, studying away, so they’re very sympathetic plaintiffs in this case. And what they’re saying is that the city is actually engaged in pretext, pretending that, oh, we just want to comply with federal law, but what they’re actually doing is saying we want to engage in racial balancing and we want to discriminate against whites.

JOHN HOCKENBERRY: Let’s take a look at the federal role here. The Justice Department has actually filed friend of the court briefs on both of these cases, and they are by no means required to do so. This is plaintiffs vs. defendants and the court is sort of weighing in in the middle. What do we see in these two friend of the court briefs as far as it suggests the style of Eric Holder, the new Attorney General, and, even more broadly, Barak Obama, who as we know, Kenji, is a law professor, or was once a law professor before he got this current gig?

KENJI YOSHINO: We’re not holding that against, him, right? John?

JOHN HOCKENBERRY: Right, right, we’re not. Maybe we should? I don’t know what you’re going to say.

KENJI YOSHINO: [Laughs] Good, but we’re not. What I would like to say here is that I was sort of looking at these general briefs, and what really struck me was that both of the briefs, which as you say were filed for the United States government and, as you also said, this government doesn’t have to come in and file this friend of the court brief. What struck me as being common to both of them, both of these cases, is that there’s a real Obama-esque attempt to give each side it’s due, to find a middle ground. To find a common ground, but not in a kind of appeasement, we’re going to waffle here. It really is a very wise, sensible, intelligent reading of the law and in both cases they kind of split the difference, so let me go into specifics, just because I think it’s useful to talk about concretely. And in the Safford case, the strip-search case, what they said is this going forward is unacceptable, you cannot do it, on these facts you cannot strip-search a 13-year-old girl.

JOHN HOCKENBERRY: That’s what the government says.

KENJI YOSHINO: That’s what the government says. But, we are not going to hold this particular school district liable because we have these other cases in Kansas, for example, and other states, where –

JOHN HOCKENBERRY: So, declaring it an unacceptable strip-search, but backing away from punitive actions against that particular school.

KENJI YOSHINO: Exactly. But going forward, like, if Safford school district does this again tomorrow, then they’re liable, because now the law is clear. So essentially, what the Obama administration is saying is let’s forget the past, let’s make the law clear going forward and you have to abide by the law and so do all other schools. So that’s a recommendation to the –

JOHN HOCKENBERRY: Very quickly, what’s the sense on affirmative action coming from the Holder justice department, and then I have a final question.

KENJI YOSHINO: On the affirmative action thing, what the United States is saying is that look, this is not a legal question, this is a factual question. One side is saying that it didn’t discriminate, it was just trying to comply with federal law. The other side is saying that was just a pretext for discrimination. Whether or not the city of New Haven is telling the truth is a factual question, not a legal question, so send it back, they say send it back to the drawing board.

JOHN HOCKENBERRY: Interesting. How influential is the justice department in bringing cases to the Supreme Court, in deciding what the Supreme Court actually gets to hear, because it’s so important in actually determining what cases actually make it to the Supreme Court.

KENJI YOSHINO: As a formal matter, it is not in the sense that the ultimate decision rests with the Justices themselves. What happens is that nobody has an appeal of right to the Supreme Court, which is to say that if I’m appealing from district court to appellate court, I have a right to be heard. If I’m appealing from the federal appellate court to the United States Supreme Court, I have to file a petition to be heard, and only a tiny percentage of those, less than 4% are heard every year.

JOHN HOCKENBERRY: So they don’t get to the front of the line, but the decisions, particularly if the government is involved, are often some of the weightier issues, even though sometimes they’re not as well.

KENJI YOSHINO: Exactly right.

JOHN HOCKENBERRY: Well, interesting stuff. And a great way of thinking about the cases independent of just the facts of the case. Two important cases being argued this week. To explain them and put them in context, Kenji Yoshino, the Chief Justice Earl Warren Professor of Law at NYU law school. Thanks so much for coming down.

KENJI YOSHINO: Thanks for having me.