Breaking: FBI Raids Office of Special Counsel

The FBI raided the headquarters of the Office of Special Counsel today, and agents from the Office of Personnel Management siezed boxes of evidence from the Director's home. The OSC is responsible for protecting federal whistleblowers from retaliation.

According to the Washington Post, the FBI served 17 subpoenas and sequestered the agency Director, Scott J. Bloch, for questioning. Bloch has been under scrutiny for his handling of the department, and his understanding of whistleblowing in general, since he took the position in 2003.

It is unclear at this time what specifically the Bureau was looking for; the warrant was apparently extremely broad. More news when we get it.

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3d Circuit: High School Coach Can't Pray With Players

In a closely-watched case, the Third Circuit Court of Appeals has ruled that a New Jersey high school football coach violated the Constitution by initiating and participating in student-initiated pre-game prayers.

Marcus Borden, East Brunswick High School's football coach for 23 years, sued the school after the superintendent informed him that his actions during grace at the pre-game dinner and conducting a pre-game "take-a-knee" type prayer had to stop. Borden claimed that the restrictions violated his 1st amendment rights of speech and association.

The case garnered attention during litigation, and blew open when the federal district court ruled in Borden's favor, saying he could bow his head or take a knee when his team captains led the team in prayer.

The odd thing is, while the Third Circuit completely overruled the district court's opinion, it didn't really disagree with that idea.

The crux of the Third Circuit's decision is the way in which a violation of the Establishment Clause is defined:

A school district also violates the Establishment Clause if “a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion. The test does not focus on the government’s subjective purpose when behaving in a particular manner, but instead focuses on the perceptions of the reasonable observer.

The Court then explained that, while "not every religious display of a school official will have the necessary 'history and context' to be an Establishment Clause violation," Borden's history of picking players to pray, asking everyone to stand for grace, and leading the team prayer before games meant that any continued act by him would cause a reasonable observer to believe that he, and therefore the school district, was endorsing the religious activity.

This case-by-case, person-by-person analysis caused a lot of sparks on both sides.

Borden's lawyer, who has said he will appeal to the Supremes, noted that it was "clear from the Third Circuit opinion...that public school coaches who do not have a history of praying with their players can bow their head and take a knee." A fact that he called "a bit of an ambiguity."

Rev. Barry Lynn, director of Americans United for Separation of Church and State (who helped defend the district) praised the opinion on this point, saying it would rein in "coaches who want to act like pastors" without overly restraining coaches who just want to support their teams.

HT's: NY Times, ABA Journal

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Teacher Pensions Teaching Wall Street a Lesson

Before I started law school, I was an aide at an elementary school. It was a humbling experience. The math and reading was ok, but everything I thought I knew about personal relationships was turned on its ear. My point is, anyone who knows a teacher (hello, Mrs. Galvan!) knows that they teach social responsibility and ethics as much as reading and math (and law).

We were not surprised, then, to find out that the California and New York teacher retirement funds filed amici briefs in Stoneridge Investment Partners v. Scientific-Atlanta Inc., a derivative securities fraud case heard last week by the Supreme Court.

From Education Week:

The California and New York state teacher-retirement funds, as well as some other large state pension funds, filed or joined friend-of-the-court briefs on the side of shareholders. The shareholders are seeking to hold two big companies that were the business partners of Charter Communications Inc. liable for allegedly helping the St. Louis-based cable-TV company in a fraudulent scheme that helped inflate its cash flow in 2000.

The teacher-retirement funds note that they have become some of the most active institutional investors in trying to improve the integrity of publicly traded companies in the wake of Enron and other recent high-profile corporate-fraud cases.

If anyone is going to teach corporate defrauders a lesson, we'd pick the teacher's unions. Not because of the love we have for our teachers, but because they're generally the best-funded, best-invested funds in the public sector.

Click the jump for CE's color commentary.

Another story: in Mississippi, where I spent first grade, every teacher in the school had a paddle. My teacher's paddle was named Charlie Brown. The principle's was named Buster and had holes cut in it for speed and angry eyes painted on the end. The pensions are swinging with Bowser.

The lesson here is more dunce-cap-in-the-corner than get-up-try-again, and it's one the CEOs had better learn. Corporate waste is easy when the shareholders are disjointed and hard to unify. But when three pension funds with billions of dollars invested can hold a 20-minute conference call and decide to dump your inefficient company stock, it becomes a much bigger deal. So, corporations, heads up. The teachers are pissed. And the water reclamation employees and the trash collectors. Regular people rely on you being responsible so they can retire.

In the immortal words of Tyler Durden:

"Look, the people you are after are the people you depend on. We cook your meals, we connect your calls, we guard you while you sleep. Do NOT f*** with us."

Though we hope our honored educators wouldn't use such foul language.

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Current Employment Goes (Pale) Green!

The guys were going to join in the Blog Action Day festivities by writing a big post on qui-tam actions under the Federal Claims Act and their viability as stop-gaps in environmental protection. Then the Saints won last night and now all I've got is this list of resources for environmental whistleblowers, which they think is still realy responsible:

Workplace Fairness Env. Whistleblower FAQ
Bush Administration Ruling Throws Cold Water on Environmental Whistleblowers
Government Whistleblower Pages:
- OSHA
- EPA (scroll down)

Finally, a website we HIGHLY reccommend: Public Employees for Environmental Responsibility (or, PEER to their buddies). This group is a service organization that, among other things, lets public employees speak out with the benefit of anonymity. To see why such an organization is needed, go to the "campaigns" section and take your pick.

We'll be back tomorrow with less socially-conscious posts. Maybe we'll focus on union busting or ESOPs or something.

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