Start of the Term

RAY SUAREZ:

At issue in today's argument in the High Court: Should a company have to consider rehiring an employee who was terminated for drug or alcohol abuse? To walk us through this case and others awaiting the Justices in this new term, we're joined by NewsHour regular Jan Crawford Greenburg of the "Chicago Tribune."

JAN CRAWFORD GREENBURG:

Thank you.

RAY SUAREZ:

Now, today's argument Raytheon versus Hernandez, what were the particulars there?

JAN CRAWFORD GREENBURG:

This case involves Joel Hernandez a 25 year employee of Hughes Missile Systems, which has since been acquired by Raytheon who left the company in 1991 after he failed a drug test. Three years later, clean and sober, he went back and asked for another job. And the company refused. So Mr. Hernandez took his claim to court and sued and it argued that the company had violated his rights under the Americans with Disabilities Act. He said he was covered by that law, because of his disability, his former addiction and that in refusing to hire him the company was in violation.

A federal appeals court agreed that he could pursue that claim and allowed him to go for it to trial. The company took that case to the Supreme Court and it argued today that the Justices should reverse that federal appeals court decision.

RAY SUAREZ:

So the argument wasn't over whether or not drug addiction is an illness under ADA, that's settled, that part?

JAN CRAWFORD GREENBURG:

Sure the ADA protects people from discrimination if they're recovering alcoholics or drug abusers, people in rehab, the ADA doesn't protect people and certainly employers can fire people who are using drugs on the job. But it comes into play when an applicant comes back and says I would like to be considered for the job. It says that the employer, the company can't say, no you're a former drug user and we're not going to hire you.

RAY SUAREZ:

What did the two sides have to say during argument?

JAN CRAWFORD GREENBURG:

The lawyers for the company and the Bush administration were on the same side and they took the position today that, look, Raytheon is not discriminating against Mr. Hernandez. It did not single him out for disfavored treatment but merely relied on a neutral policy in place at the company says it will not consider rehiring any employee who has been let go because of misconduct.

Mr. Hernandez it said was treated no differently than an employee who had been let for for sexual harassment or theft. He just happened to be let go because he was abusing drugs and alcohol at the time. And the lawyer for the Bush administration and company emphasized tremendous sweep of a ruling in this case. Thousands of businesses they said have similar policies in place that prevent rehiring former employees who have been let go because of misconduct.

RAY SUAREZ:

And Joel Hernandez's lawyers?

JAN CRAWFORD GREENBURG:

He made the point, well, first of all, he said we don't think the policy was in place in the first place. They questioned whether or not Raytheon had such a policy. Certainly it was unwritten and several justices particularly Justice Ginsburg seemed concerned there were unresolved factual issues that may prevent the court from actually getting to a decision in this case.

But his bottom line was that there was no policy in place. That's a bogus argument and even if there had been a policy in place, it can't come in to kick out all of the people disabled because of their former addiction.

RAY SUAREZ:

Interesting issues all, once again but the court being called again to rule on the Americans with Disabilities Act. Hasn't this court had to face a lot of suits concerning this?

JAN CRAWFORD GREENBURG:

Yes. Ever since the Congress passed this law in 1990, the court has taken up quite a bit of claims under the ADA, and this is not the only claim the Justices will hear this term.

RAY SUAREZ:

What are some others?

JAN CRAWFORD GREENBURG:

A case extraordinarily interesting and important argued next month involves whether states can be you'd by private citizens for violating a provision in the ADA that requires public entities to provide access to buildings and services and programs for the disabled.

This involves a Tennessee man who was charged with failing to appear in court. He didn't want to, he says, crawl up to the second floor of a courthouse that didn't have elevators. So he sued, he sued the state of Tennessee arguing it was in violation of the ADA because its courthouse wasn't handicapped accessible.

The state responded and this is injecting the court back into those battles of congressional power over the state, the state said, look Congress never had the authority to subject us to these kind of suits when it passed the ADA. So you can't even take this claim to court. An appeals court sided with Mr. Lane and the Supreme Court will now decide if Congress had the authority to subject states to these kind of lawsuits.

RAY SUAREZ:

So not only ADA but another hallmark of the court's states rights.

JAN CRAWFORD GREENBURG:

State's rights. That's exactly right.

RAY SUAREZ:

Religion and separation of church and state are going to come up later in the year, too.

JAN CRAWFORD GREENBURG:

Yes. In December the court will hear a case from Washington State that's a twist on the voucher issue. This involves a student who was awarded a scholarship by Washington State, but then saw it taken back when the state realized he was planning to study religion and to prepare for the ministry.

So he sued arguing that the state was violating his First Amendment rights to freely exercise his religion. The state says that it was within its rights, that the state constitution erects a slightly higher barrier between church and state than does the federal constitution. And this comes on the heels of the court's voucher decision two terms ago.

At that time the court said that school vouchers were not unconstitutional under the federal constitution if they went to religious schools under establishment clause grounds for violating the separation of church and state. Today's case that will be argued in December, not today but December's case will ask whether or not if you have a scholarship program, voucher program must you include religious schools.

RAY SUAREZ:

It wasn't technically part of this term but the hearing over the constitutionality of McCain-Feingold and careful was argued just recently is there any notion how long that is going to take for a ruling?

JAN CRAWFORD GREENBURG:

I expect a decision sometime before the end of the year. Obviously that decision highly anticipated and anxiously awaited because it will have a huge bearing on the upcoming election and how the parties will raise money.

RAY SUAREZ:

Very briefly this court these particular nine Justices are remarkable for how long they have worked together as a team.

JAN CRAWFORD GREENBURG:

It's a record in modern year with nine justices on the bench intact this long, 1994, Justice Breyer came on the court. We have no had a retirement since, everyone expected that President Bush would be able to name one, two, maybe even three Justices to the Supreme Court. So this court will be a big issue in the presidential campaign, because the next president surely will get a nomination.

RAY SUAREZ:

Jan Crawford Greenburg, thanks for being with us.

JAN CRAWFORD GREENBURG:

You're welcome.