by Peter Eliasberg, ACLU/SC managing attorney and Manheim Family Attorney for First Amendment Rights

Court To Examine Whether Transfer of Land With Cross In Mojave Desert National Preserve Remedies Establishment Clause Violation

Salazar v. Buono originated as an Establishment Clause challenge to the presence of a Latin cross on federally-owned land in the Mojave National Preserve in California. During the course of the proceedings, Congress passed a law providing for the transfer of the land on which the cross was located to the Veterans of Foreign Wars (VFW). After prevailing on the Establishment Clause claim, former National Park Service employee Frank Buono successfully challenged the transfer as a sham designed to circumvent the court's judgment in his favor. At issue in the proceedings before the Supreme Court is whether the transfer fully remedies the already adjudicated constitutional violation. The government is also asserting that Mr. Buono lacked standing to bring the Establishment Clause case in the first instance.

Background

A cross was first erected on the site in 1934, but has been torn down and replaced several times since. The current cross, which is about six feet tall, sits on the top of a prominent rock outcropping next to one of the principal roads through the preserve. A plaque announcing that the cross is intended as a memorial for veterans of all wars was placed at the site in 1934, but it has long ago disappeared and not been replaced. In the late 1990s a man asked the National Park Service for permission to erect a stupa ''' a Buddhist memorial ''' at the site. The Park Service refused the request.

Mr. Buono is a retired employee of the National Park Service, a veteran and an observant Catholic. Although he has a Latin cross in his own home, he objects to the presence of a sectarian religious symbol on government property and the favoritism the government has shown by allowing a private party to erect the cross while refusing to allow others to erect other symbols, including other religious symbols in the area.

Court Proceedings

In 2001, Mr. Buono filed a civil action in federal district court alleging the cross violated the Establishment Clause and seeking a permanent injunction. On cross-motions for summary judgment, the district court ruled in Mr. Buono's favor and granted a permanent injunction barring defendants from permitting the display of the cross. During the pendency of the district court proceedings, Congress designated the cross a national memorial commemorating United States participation in World War I and the veterans of that war. It is one of approximately 50 national memorials in the United States, which include Mount Rushmore and the Vietnam Memorial.

The government appealed the district court's judgment. During the pendency of the appeal, Congress enacted a land transfer provision: the National Park Service would transfer approximately one acre of land on which the cross sat to a local chapter of the VFW; in exchange, local resident Henry Sandoz (who had erected the cross) would transfer approximately five acres of land he owned elsewhere in the preserve to the Park Service. In a unanimous opinion by Judge Alex Kozinski, the Ninth Circuit held that Mr. Buono had standing to challenge the cross and that the cross violated the Establishment Clause. The court rejected the government's assertion that the transfer statute mooted the case, noting that the transfer had not yet occurred and might take up to two years to accomplish. The government did not file a petition for certiorari.

Approximately five months after the Ninth Circuit's judgment, Mr. Buono filed a motion in district court to enforce the judgment, arguing that the transfer was inconsistent with the permanent injunction the court had entered. The district court granted the motion and enjoined the transfer. A three-judge panel of the Ninth Circuit unanimously affirmed the district court. At that point, the government filed a petition for certiorari, which the Supreme Court has granted.

Mr. Buono has made several arguments in support of the decision:

First, the 2002 judgment of the district court, as affirmed by the Ninth Circuit in 2004, is a final judgment. By not filing a petition for certiorari from that judgment, the government is precluded from raising ''' five years later ''' all issues encompassed in the judgment, including Mr. Buono's standing to bring the case.

Second, even if the Court concludes that the standing question is properly before it, Mr. Buono had standing to bring this case. He visits the preserve regularly and must either accept the presence of a government-endorsed religious display, which offends him, or undergo burdens to avoid that contact. The Supreme Court has explicitly or implicitly recognized that kind of injury as sufficient for standing purposes in numerous cases.

Third, the lower courts were correct in concluding that the land transfer was not a valid remedy to the already-adjudicated Establishment Clause violation. The government's basic argument is that reasonable people will associate the message conveyed by the cross with the owner of the land on which it sits. Thus, if the government no longer owns the land, it will no longer be seen as endorsing the preeminent symbol of Christianity. That argument ignores the cross' continuing designation as a national memorial and its location in the midst of a national preserve.

Fourth, if the government had wanted to transfer the land, it could have made it available to the highest bidder. By transferring the land to someone who was committed to maintaining the cross at its present location, the government reinforced its endorsement of the religious symbol while, at the same time, denying other religious faiths the opportunity to erect their own, comparable religious displays in the preserve. As the Ninth Circuit found, that sort of religious favoritism compounded the Establishment Clause violation, rather than resolving it.

Immigrants detained in a federal detention center in downtown Los Angeles can no longer be held for weeks on end in crowded cells without drinking water, changes of clothing or sanitary napkins, or be deprived of their ability to defend themselves, under the terms of a settlement announced today by the American Civil Liberties Union of Southern California (ACLU/SC), the National Immigration Law Center (NILC) and the law firm of Paul, Hastings, Janofsky and Walker LLP.
The settlement with the U.S. Immigration and Customs Enforcement (ICE) agency means an end to unsanitary conditions in the basement facility known as “B-18.” It also puts a stop to the practice of shuttling detainees back and forth to overcrowded local jails in an effort to avoid rules prohibiting long-term detention at the facility. The agreement prohibits the agency from holding detainees there for more than 12 hours on any given day or over two consecutive days, subject to limited exceptions.
“The disturbing human shell game of shuttling people back and forth between jails has ended at B-18. This settlement eliminates the unacceptable conditions that existed and restores detainees’ dignity and their right to due process,” said Ahilan Arulanantham, director of immigrants’ rights and national security at the ACLU/SC. “It is one step, but an important one, in correcting our severely broken immigration detention system nationwide.”
The settlement agreement stems from a federal lawsuit brought five months ago by the ACLU/SC, NILC, and Paul, Hastings, Janofsky and Walker LLP, charging that ICE often held immigrants for many weeks in terrible conditions at B-18, a facility which was intended only to hold detainees for short periods of time.
To its credit, the government promptly took steps to correct many of the problems at B-18 shortly after the lawsuit was filed. Within weeks, the agency adopted a rule that detainees could be held at B-18 for no more than 12 hours on any given day. It also significantly improved conditions at B-18 by providing better access to water, hand sanitizers and sanitary napkins.
Prior to the lawsuit, detainees had painted a harrowing picture of conditions at the facility. There was no soap or drinking water. Immigrants were crowded into cells, sometimes waiting for hours without room to sit down. Some had not been able to shower, brush their teeth, or change their clothes in weeks. Women asking for sanitary napkins were often ignored, and detainees were often forced to sleep on the floor for several days in a row. Many detainees also had no access to writing material, effectively depriving them of the ability to prepare legal documents needed to defend themselves. The conditions were symptomatic of problems that exist in ICE detention centers around the country and were documented in the recent report “A Broken System: Confidential Reports Reveal Failures in U.S. Detention Centers,” co-written by NILC and the ACLU/SC.
“No longer can ICE stuff people into overcrowded cells or deny detainees their right to see a lawyer. This settlement serves as a safeguard against what was once an almost everyday situation at B-18: unlawful treatment and unsanitary conditions,” said Karen Tumlin, a staff attorney with the NILC. “As this lawsuit shows, major national policy changes are desperately needed to safeguard against the terrible conditions that afflict so many immigrants held in detention centers across the country.”
Under the agreement, ICE must now provide writing material and mail access to B-18 detainees who have a need to prepare legal documents. Additionally, detainees must be notified of this right via a notice posted inside each of the cells. Immigration lawyers and their representatives, sometimes denied visitation in the past, are now guaranteed the right to meet with detainees at the facility during regular business hours.
In order to monitor the situation at B-18, the legal team behind the lawsuit will be provided with electronic rosters of detainees to determine their length of stay. The team has also been granted permission to make occasional visits to the facility to check that there are no violations of the agreement. Inside the facility, every manager and new employee will be made aware of the terms of the agreement, so that they can ensure there is full compliance.
“This agreement shows that the government can create a clean, safe and constitutionally run detention facility, and we hope that the settlement reflects a new priority of the Obama administration,” said Toliver Besson, a partner at Paul, Hastings. “If the administration is truly committed to immigrants’ rights, this facility will be the norm, not the exception, for detention facilities around the country.”
In addition to those named above, counsel for plaintiffs in the case included: Marisol Orihuela, formerly of the ACLU/SC; Linton Joaquin of NILC; Jamie Broder, James W. Gilliam Jr., Stephen J. Turanchik, Eleanor Mercado, Amanda Gilman, Nick Begakis and Morgan Pietz, all of Paul, Hastings.
 
 
 
 
 
 

SANTA ANA, Calif. – The ACLU of Southern California and the law firm of Hadsell, Stormer, Keeny, Richardson and Renick LLP have settled a lawsuit against Orange County’s Newport-Mesa Unified School District and Corona del Mar High School over a sexist and homophobic atmosphere that officials permitted to flourish at the school.

The settlement agreement filed today in Orange County Superior Court resolves a lawsuit over an environment that led to despicable threats of violence against Hail Ketchum, a senior at Corona del Mar High School at the time. Under the agreement, district officials will provide a written apology to Ms. Ketchum.

The district also will provide mandatory training sessions for administrators, teachers and students that will focus on the harmful impact of sexual discrimination and harassment, as well as on federal law and district complaint protocols to be followed whenever anyone experiences discrimination or harassment based on sex, sexual orientation and gender identity.

“The mandated training will make it clear to administrators, teachers and students not only what constitutes sexism and homophobia, but what school officials must do to deal with it – and prevent it from spreading – according to the law,” said Hector Villagra, director of the ACLU/SC’s Orange County office.

Ms. Ketchum, who agreed to be publicly identified for the first time today, said that while the district’s apology to her is important, she’s been primarily interested in ensuring that district officials do everything they can to prevent other students from being the target of vitriolic comments and threats like those she experienced. Those attacks “were disgusting and very disturbing to me personally,” she said. “But what was really disheartening is that when I complained about them, the administrators did little to deal with them. I’m happy that the settlement provides the school with a road map of how to address situations like this more appropriately.”

The training mandated by the settlement will be conducted under the direction and guidance of the Orange County/Long Beach regional office of the Anti-Defamation League. It includes an eight-hour program later this year for all district managers, school-site administrators, principals and assistant principals. Teachers and staff at Corona del Mar will get two two-hour training sessions during the current school year, as will students.

“It’s important for high school students to be educated about bullying and homophobia. It’s crucial for school administrators and teachers not only to be aware of these issues, but how to deal with them,” said Katherine Darmer, a Chapman University law professor who is on the board of the Orange County Equality Coalition, which focuses on LGBT issues. “It’s shameful that Ms. Ketchum had to suffer through the threats and comments she did, but I’m hopeful that with this new training, school officials will be better prepared to deal with a situation like this if it comes up again.”

“California law guarantees a safe and bias-free learning environment for all students,” added Anne Richardson, a partner with Hadsell Stormer. “School officials must understand that they have a duty to take affirmative steps to change a school culture that ignores or promotes harassment and discrimination.”

Image: Karyl Ketchum and Michael Wiggins, parents of former Corona del Mar High School student Hail Ketchum.