Frank’s Case Book

On June 11, 2001, the Supreme Court took another step in defining the Constitutional protections offered by the Fourth Amendment’s prohibition against “unreasonable searches” in an age of rapidly improving and intrusive surveillance technology. The case involved one Danny Lee Kyllo. It seems that Kyllo was an avid indoor horticulturalist. Unfortunately, Kyllo devoted his botanical skills to raising marijuana plants rather than roses.

The indoor cultivation of marijuana requires high intensity lamps. On the basis of tips that Kyllo was involved in marijuana transactions and had larger than average electric bills, but without bothering to secure a warrant from a judge, the authorities arranged for Kyllo’s house to be scanned by an Agema Thermovision 210 thermal imager. The imager revealed the increased heat emanating from the house indirectly indicating the presence of the marijuana lamps. Using this additional information, the police persuaded a judge to issue a search warrant. The results of that search provided evidence used to convict Kyllo.

The issue before the US Supreme Court was whether the use of the imager constituted a search. If it was a search of a home without a warrant, then the evidence from the imager could not be presented to a judge to secure a warrant or used in a trial against Kyllo. If the use of the imager is considered the gathering of information that is “in plain view,” then its use is “presumptively reasonable.”

Writing for the majority in a close 5-4 decision, Justice Antonin Scalia found that the use of the thermal imager to scan a private home is indeed a search and requires a search warrant. Scalia’s reasoning relies on Silverman v. United States (1961) that argued that the essential core of the Fourth Amendment “stands the right of a man to retreat into his own home [and] there be free from unreasonable governmental intrusion.” Kyllo was at home and Scalia argues that in the home there is reasonable assumption of privacy that was violated by the scanner.

Justice Paul Stevens, dissenting, tried to draw a distinction between “through the wall surveillance” and “off the wall surveillance” but the only thing off the wall was Stevens’s reasoning. Stevens argued that the thermal imager was detecting emanations from the house not really looking into the home. But his distinction was one without a difference. If a device amplifies the senses and allows the authorities to determine what is happening in a house in a way that would normally require a more direct conventional search, the use of the device really is a search. Moreover, Scalia responded that even if this particular thermal imager provided crude images, “the rule we adopt must take account of more sophisticated systems that are already in use or development.”

One reason that a person has a reasonable expectation of privacy, according to Scalia, is because thermal imagers are not “in general use.” This is the one important flaw in Scalia’s argument. Technology will inevitably improve. If consumer video cameras in the future have infrared imaging capabilities, then any passerby could detect hot spots in a house. This being the case, the reasonability of the expectation of privacy erodes and the zone of personal privacy shrinks.

What is also interesting about this case is the way the court divided. In the past, Justice Stevens has been more likely to side against law enforcement authorities. Yet in this case he found that the use of a thermal imager did not constitute a search under the rules of the Fourth Amendment. On the other hand, Scalia and Thomas, who have been less inclined to shackle law enforcement authorities, are clearly fearful of a world open to high-tech government intrusion.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” — First Amendment to the US Constitution.

“The constitutional freedom of religion [is] the most inalienable and sacred of all human rights.” — Thomas Jefferson: Virginia Board of Visitors Minutes, 1819.

Students from a North Carolina Christian school were recently visiting the White House. During a respite, students joined hands and began a prayer on behalf of the President. After a short while, the Secret Service broke up the prayer and reportedly told the group to “take it outside.” Perhaps the moment of prayer was slowing the progress of the tour group or perhaps the Secret Service was just awkward and did not know what to do. The scene was an inconsequential little incident, but it may serve to remind us how uncomfortable religion in public places makes many feel in what Stephen Carter has called the “culture of disbelief.”When Carter wrote the Culture of Disbelief in 1993, the Christian Right, at least the part typified by Pat Buchanan’s speech at the 1992 Republican National Convention, convinced some that churches were conspiring to institute a theocracy. Religion, many contemporary Americans believe, ought to be treated as a hobby indulged on Sunday mornings, with no real place in serious public discussion. Stephen Carter is a political Liberal and religious believer who, by contrast, laments that religion has been virtually eliminated from the public square, denuding public discussion of an important source of wisdom. When people of faith speak, people squirm.

The first freedom protected by the First Amendment is freedom of religion. Freedom of religion is different and distinct from freedom of speech. It is not just freedom of conscience. The First Amendment protects religious institutions from the state.

The worst political outcome is tyranny and one way to prevent tyranny is to have different and independent centers of authority. Religion is one such center. Religion and spirituality are at their best when they act in resistance. Stephen Carter calls religion a “bulwark against state authority” and suggests that “the idea of religion as an independent moral force … is crucial …to the role of religions as intermediate institutions to which citizens owe a separate allegiance.”

In 1990, the Roman Catholic Archbishop John Cardinal O’Connor warned that Catholic public officials who supported abortion rights might be formally separated from the church, i.e., excommunicated. The action was considered an inappropriate intrusion of religious belief into public debate. Stephen Carter cites New York University law professor Burt Neborne as arguing, “When you accept public office, you’re not a Catholic, you’re not a Jew. You’re an American.” Carter argues it is possible to be both a person of faith and in public office.

Carter contends that Liberals cannot, on the one hand, argue that religious leaders have no business becoming involved in public policy issues, when they did not complain when religious leaders supported positions they favored. There was no claim by Liberals that religions should mind their own business when the Catholic Church in the 1950s threatened to excommunicate public officials who supported segregation. Liberals did not object when Catholic bishops supported the ill-fated nuclear freeze movement of the 1980s. Liberals did not oppose the Southern Baptist Church when it nurtured and supported the civil rights movement. If you accept the legitimacy of Rev. Jesse Jackson in the public square, Rev. Pat Robertson cannot be excluded because of his faith perspective.

Carter’s most trenchent argument is that government has a positive obligation not just to be neutral with respect to religion, but also to be deferential to and accommodate religious observance. When otherwise reasonable legislation comes into conflict with personal religious practice, Carter argues that the state should have to show a compelling interest before restricting such a practice. In a relatively rare act of deference, in Wisconsin v. Yoder, the Supreme Court agreed the state interest in the education of children was not superior to belief by the Amish that they should remove their children from school after the 8th grade. More often, such deference has not been shown. In Employment Division v. Smith, the Court did not respect the rights of members of the Native American Church to use the controlled substance peyote, a religious practice that predates the United States. There is probably not a little religious, let us say “insensitivity,” in the failure to recognize that state should not have prevented the “free exercise of religion” in that case.

If we expect people to be true to their conscience, we must accept that sometimes religiosity informs that conscience. This represents healthy respect for plurality in a democracy. Some people are thoroughly spiritual. They cannot and ought not be asked to separate the core of what they are in exchange for the right to be seriously listened to in the public square.

`But let someone actually advocate a prohibition against considering the color of our skin, and we know at once that we’re hearing the words of an enemy — either a white racist or a black sellout.” — William Raspberry, columnist for the Washington Post, March 30, 2001.

Statistical correlation is a valuable thing, but when we start to apply statistical generalizations to individuals, a mathematical calculation can turn pernicious. This is certainly true in the case of racial profiling, where law enforcement officers single people out for scrutiny on the basis of skin color. Even if there is a real correlation between race and ethnicity and likelihood of crime, it is immoral to leap to the presumption that a person of a certain group has particular characteristics. Unless people are judged on how they act and what they do as opposed to membership in an ethnic or racial group their humanity is ignored.

Assumptions lurking behind the use of racial profile float over the different but intimately linked issue of racial preferences in college admissions. Both seek to classify using race on the grounds that skin color is associated with other characteristics. Recently, United States District Judge Bernard A. Friedman of the Eastern Division of Michigan ruled that the use of race in the admissions process at the University of Michigan Law School “violates the Equal Protection Clause of the Fourteenth Amendment and Title IV of the Civil Rights Act of 1964.” The court further ordered relief to plaintiff Barbara Grutter who had been denied admission to the law school.

The case, which will likely be appealed to the US Supreme Court, is particularly interesting since many of the arguments in favor of using preferential treatment based on race were adjudicated and found wanting.

In the Bakke decision, the US Supreme Court hinted that if race were just one factor in the admissions process, essentially breaking ties in close decisions, it might be constitutionally permissible, even given the “strict scrutiny” the Court applies to considerations of race by the state.

Evidence presented at trial provided, in the view of the judge, “mathematically irrefutable proof that race is indeed an enormously important factor” for admissions at the University of Michigan’s Law School. Statisticians found that minority applicants with similar credentials were far more likely to be admitted than similarly situated white students. “For example if a Caucasian applicant has a 6-7% chance of being admitted, an African-American with a similar index score would have a 93% chance of being admitted. If a Caucasian applicant has a 10% chance of being admitted, a Mexican-American applicant with a similar index score would have a 90% chance of being admitted.”

The evidence is so overwhelming that no one can really believe that race is merely one of many factors used in admissions. Even the statistician for the University of Michigan admitted that if color-blind admissions were used, African-Africans would constitute 4% instead of 10-17% of the entering classes. One can argue that there are valid reasons for weighting race so heavily, but it is not honest to argue that race is not a definitive factor in admissions.

The judge found that the effect of the University of Michigan’s admissions policy was indistinguishable from a formal quota system.

The University of Michigan Law School argued that “diversity” in the classroom was an educational value. By admitting a “critical mass” of minority students, the defendants argued, the law school insured a diversity of ideas in the classroom.

Judge Friedman was uncomfortable with the generalization that different ideas are associated with race. Friedman wrote, “[A] distinction should be draw between viewpoint diversity and racial diversity. While the educational benefits of the former are clear, those of the latter are less so. The connection between race and viewpoint is tenuous, at best.”

Indeed, the former dean of the law school admitted that, “I cannot recall an instance in which, for example, ideas were presented by a black student that have not also been expressed by white students.”

To argue that we can presume that people of a different color will have different viewpoints is to engage in the same type of stereotyping that should have expired decades ago.

Few involved in the admissions process at many universities really believe that race plays a minor factor in admissions or that viewpoint diversity is the real goal. The hidden, but by no means ignoble, truth is that the Liberal attitude, so pervasive on college campuses, worships at the altar of equal outcomes. Liberals believe that unless outcomes are equal, society is unfair or racist and that the state is justified in taking extreme steps to alleviate the disproportionately low representation of minorities. But to clearly express this view and not hide behind the diversity argument or the fiction that race plays only a minor role in admissions would be to acknowledge the unconstitutionality of their remedy.

William Raspberry, a Liberal African-American, sympathetic with preferential treatment in the admissions process, admits as much when he laments, “…we are required to dance on legal and definitional pinheads to defend policies we believe ought to be sustained for at least a while.”

The other sad truth is that some conservatives who rail against affirmative action do not demonstrate similar concern for persistent under-representation of minorities. As Raspberry complains, “…we want the rest of Americans to desire — really desire — fair outcomes.”

Efforts to alleviate the problems of minorities will not succeed if the primary modality of the solution starts at college admissions or at the time people apply for jobs. Our job collectively via government action and through individual and private efforts is to nurture those institutions, schools, churches, and families that will ultimately provide the intellectual, emotional, and spiritual resources necessary for success. As long as minorities are given preferential treatment and as long as they believe they cannot compete with out it, they will be relegated to second-class status.