Thursday, May 25, 2006

Friery v. Los Angeles USD (9th Cir. - May 24, 2006)

This one is just rushing to judgment. (Not.)

The case concerns whether a school district's race-conscious transfer policy is unconstitutional. The matter was fully briefed in 2001. And the Ninth Circuit had oral argument in 2002. Later that year, they certified some questions to the California Supreme Court, which promptly denied the certification. Then almost a year passes. At which point the panel orders supplemental briefing. Then yet another year passes, at which point the panel stays the case pending a contemporary en banc case. Then another 18 months then passes, at which point the panel orders some more supplemental briefing. Then, in April 2006, the panel holds yet another oral argument.

And now, in this opinion, rather than actually decide the case -- because the appeal has only been pending for five years, after all -- the panel remands the case back to the district court to decide various standing issues (and also, in footnote two, suggests that, while it's at it, the district court might consider additional abstention and supplemental jurisdiction issues as well). To which my reaction is, well, sure, we definitely want to make sure there's Article III standing. I'm all for that. But this issue has existed in the case since the beginning. Maybe we should have done that first; say, back in 2002? After all, why all the briefings and arguments and stays on the merits if we're not even sure about constitutional standing?

As this case continues on its leisurely pace to decide whether a continuing district policy is unconstitutional, one might perhaps mention an old adage. "Justice delayed is justice denied."

Let's speed this puppy up, okay?