REGULARS

The other two cases decided by the Supreme Court involved claims by College Savings Bank, which devised a system for students to save money to pay college tuition. College Savings Bank brought two lawsuits against the Florida Prepaid Postsecondary Education Expense Board for copying their system. One claim was for patent infringement. In 1992, Congress amended patent laws to expressly allow states to be sued in federal court for patent infringement.

In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, No. 98-531 (June 23, 1999), the Supreme Court ruled that this authorization of suits against states is unconstitutional and that states cannot be sued in federal court for patent infringement without their consent. Because federal courts have exclusive jurisdiction to hear patent claims, College Savings Bank means that no court can hear patent suits against state governments.

The other claim by College Savings Bank was under the Lanham Act against Florida Prepaid Postsec-ondary Education Expense Board for making false advertising statements. The Trade-mark Remedy Clarification Act was adopted by Congress in 1992 to authorize suits against state governments. The court, in an opinion by Justice Scalia, found that the authorization of suit was unconstitutional. Congress only may override the Eleventh Amendment pursuant to its section five powers, and the Trademark Remedy Clarification Act was not adopted under that authority.

The decisions are significant because they approve the complete preclusion of all jurisdiction. The probation officers in Maine allegedly are owed money under federal law, but they cannot sue in any court. A state university can infringe patents or copyrights and nowhere can be sued. State officers, of course, still can be sued for injunctive relief, but injured individuals have no damage remedy available against state governments. State governments can violate federal law with impunity and inflict great injuries, but cannot be sued in any court.

Criminal procedure

The most significant decision of the term concerning criminal procedure was Mitchell v. United States, 119 S.Ct. 1307 (1999). In Mitchell, the court held that an individual who pleads guilty may invoke the Fifth Amendment's privilege against self-incrimination at sentencing proceedings and that no adverse inference can be drawn from the assertion of this right.

Amanda Mitchell pleaded guilty to selling cocaine, but reserved the right to contest the amount of cocaine involved. The quantity was crucial in determining the length of her sentence. At the sentencing proceeding, the government used testimony from others involved in the conspiracy to establish the number of transactions that Mitchell participated in and the large amount of cocaine she sold. Mitchell did not testify at the sentencing proceeding, relying instead on her lawyer's attacks on the credibility of the witnesses against her. The sentencing judge expressly said that he was drawing an adverse inference from her assertion of the privilege against self-incrimination at sentencing.

The Supreme Court, in a 5-4 decision, held that defendants who plead guilty retain the right to invoke the Fifth Amendment at sentencing and that no adverse inference can be drawn from their silence. Justice Kennedy wrote the opinion for the court and was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

In contrast, the court ruled in favor of the government in virtually all of the Fourth Amendment search and seizure cases before it. In Minnesota v. Carter, 119 S.Ct. 469 (1998), the court held that defendants who were in another person's apartment for a short time solely for the purpose of packaging cocaine had no legitimate expectation of privacy in the apartment and thus any search which may have occurred did not violate their Fourth Amendment rights. In Wyoming v. Houghton, 119 S.Ct. 1297 (1999), the court ruled that police officers with probable cause to search a car may search passengers' belongings that are capable of concealing the objects of the search.

On the other hand, in Wilson v. Layne, 119 S.Ct. 1692 (1999), the court ruled that the Fourth Amendment is violated when police, executing a warrant, invite the media to enter premises. The effect is to end the practice of the police allowing the media to "ride along" when a search or arrest warrant is being executed.

Fourteenth Amendment Rights

Civil rights plaintiffs won two major victories in cases involving the meaning of the Fourteenth Amendment. In Saenz v. Roe, 119 S.Ct. 1518 (1999), the court declared unconstitutional a California statute that limits welfare benefits for first-year residents to the amount that they would have received from their prior state. In a 7-2 decision, with Justice Stevens writing for the majority and only Chief Justice Rehnquist and Justice Thomas in dissent, the court held that California law violated the right to travel which is protected by the privileges or immunities clause of the Fourteen Amendment.

This provision states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In 1873, in the first case to interpret the provision, the Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), the court very narrowly interpreted the provision and essentially read it out of the Constitution. Saenz v. Roe has revived it and now it will be interesting to see what, if any, additional rights the court finds to be protected by it.

In City of Chicago v. Morales, No. 97-1121 (June 10, 1999), the court declared unconstitutional Chicago's gang loitering ordinance, which requires gang members to disperse when ordered to do so by police officers. In a 6-3 ruling, with Justice Stevens writing, in part for a majority and in part for a plurality, the court held that the law is unconstitutionally vague and a violation of due process. The majority of the court agreed that the law gave police undue, unchecked discretion. A plurality also concluded that the law failed to give individuals sufficient notice of what they need to do to avoid being arrested.

It is likely that the case will be used to challenge anti-gang injunctions and ordinances that have become increasingly common in California cities.

Statutory civil rights claims

Some of the most important decisions of the term involved federal statutes protecting civil rights. In three cases decided on June 22, 1999, the Supreme Court significantly curtailed the reach of the Americans with Disabilities Act (ADA).

The issue in all three cases was the same: Is there discrimination based on a "disability" if a person is disadvantaged because of a medical condition that is under control so it does not interfere with major life activities?

All three cases involved individuals who were denied employment because of physical conditions. In each instance, the physical condition was corrected or controlled so that there was no claim that it would interfere with job performance. Each of the plaintiffs sued claiming that the denial of employment because of the condition was discrimination based on disability in violation of the ADA. Each of the defendants responded by arguing that the individuals were not disabled because their conditions were corrected and did not interfere with any major life activities.

Sutton v. United Air Lines Inc., No. 97-1943 (June 22, 1999), involved two twin sisters who are severely myopic, but with corrective lenses have vision that is 20/20 or better. Murphy v. United Parcel Service Inc., No. 97-1992 (June 22, 1999), involved an individual who was fired from his job because of high blood pressure that was controlled by medication. Albertsons Inc. v. Kirkinburg, No. 98-591 (June 22, 1999), concerned an individual with a vision disorder that could not be corrected, but that did not interfere with the person's life or job performance.

In all three cases, the court ruled in favor of the defendants and held that a disability exists only if a condition in its corrected state interferes with a major life activity.

The court's decisions substantially narrow the definition of disability and therefore the protections of the ADA. If a person has a medical condition that is corrected, there is not a disability and the employer can refuse to hire the person solely out of irrational prejudice against those with the impairment. However, if the condition is not corrected, then the employer can refuse to hire the person because the impairment could hinder job performance.

In a case involving another civil rights stat-ute, Davis v. Mon-roe County Board of Education, No. 97-843 (May 24, 1999), the court held that a school board may be held liable under Title IX for peer sexual harassment. However, liability requires demonstrating that the school system had actual knowledge of the sexual harassment, was deliberately indifferent with regard to this knowledge, and that the harassment is sufficiently severe and pervasive to interfere with educational opportunities.

In Kolstad v. The American Dental Association, No. 98-208 (June 22, 1999), the court held that under Title VII an employer's conduct need not be egregious in order to justify a punitive damage award, but that punitive damage awards cannot be awarded based on vicarious liability.

Conclusion

Although these, of course, are only some of the decisions of the term, they unquestionably are among the most significant rulings.

Next term promises to be even more dramatic as the court already has granted review in cases involving issues such as whether the Food and Drug Administration can regulate tobacco, what aid the government can give to parochial schools, whether states can be sued for violating the Age Discrimination in Employment Act, and the permissibility of state regulation of campaign financing.

The court may be deciding many fewer cases than it used to, but its role is certainly not diminished.

Guest writer Erwin Chemerinsky is the Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California Law School.