considers

WASHINGTON  — The Constitution protects the rights of Americans but normally does not allow them to sue federal agents for violating those rights.

This rights vs. remedies dispute has divided the Supreme Court for nearly 50 years.

It did so again Monday when the justices heard arguments on whether to throw out a lawsuit brought by a federal prison inmate in Hawaii who suffered a broken tailbone in a gang fight.

Kekai Watanabe said he told prison nurse Francis Nielsen he was in intense pain. He was given only an over-the-counter pain medication. Seven months later, an X-ray finally revealed the damage from the fracture and the source of his continuing agony.

Acting on his own, Watanabe sued Nielsen for cruel and unusual punishment in violation of the 8th Amendment.

A federal judge dismissed his suit, citing the Supreme Court’s decades of skepticism over such lawsuits. However, the 9th Circuit Court of Appeals revived his claim and pointed to a 1980 ruling that allowed a similar suit brought by a mother whose son died of an asthma attack in a federal prison.

It was the last time the high court had upheld a lawsuit for money damages against a federal agent for violating a constitutional right.

But the Supreme Court agreed to hear an appeal in Nielsen vs. Watanabe. And during Monday’s arguments, the justices debated whether to further narrow such lawsuits or to reject them entirely.

The court’s conservatives say only Congress can authorize lawsuits for money damages against federal agents and employees. And they noted that in the Federal Tort Claims Act, Congress authorized damage suits against the United States for such claims.

“The power to create damages remedies belongs to Congress, not federal courts,” said Lucas Walker, an attorney for the prison nurse. “It’s time to end the Bivens experiment.”

He was referring to a 1971 decision in which the Supreme Court for the first time authorized such a constitutional claim for money damages against federal agent. In that case, known as Bivens, the suit was against several FBI agents for an unreasonable search during a drug raid in violation of the 4th Amendment.

Walker argued the court should overturn the Bivens case as well as the later ruling allowing a suit involving gross medical negligence.

But Joshua Wesneski, an attorney for Watanabe, said the prospect of being sued for wrongdoing “has a powerful deterrent effect.”

This issue has taken on new significance because of the aggressive and sometimes violent actions of federal immigration agents. They may be charged with a crime but they are not subject to being sued for damages by victims or their families.

After the Civil War, Congress passed an enforcement law that authorized suits against state and local officials acting under color of law who violated constitutional rights. But there is no comparably broad law for federal officers and agents.

That’s why a Los Angeles police officer who uses excessive force can be sued in a federal court, but the same is not true of a federal immigration agent.

Democrats in the Senate may try to change that in the year ahead.

Sens. Alex Padilla (D-Calif.) and Richard Blumenthal (D-Conn.) have proposed an “Accountability for Federal Law Enforcement Act” to allow victims to sue for “damages for constitutional and civil rights violations committed by federal law enforcement agents.”

They said Congress needs to extend the same legal accountability to federal agents that has long applied to police and other state and local officials.

“Recent incidents — from violent ICE and CBP raids to abuses by federal task forces — have underscored this gap in accountability,” Padilla said. “These events have eroded public trust and shown how federal officers can act with impunity even when their conduct clearly violates constitutional protections.”

WASHINGTON  — In its latest chapter on religion in schools, the Supreme Court debated Tuesday whether Colorado may fund private preschools for 4-year-olds but exclude Catholic schools that refuse to serve same-sex parents and their children.

The court’s six conservatives, all of whom were raised Catholic, leaned in favor of ruling the state was discriminating based on religion.

The state offered funding to all preschools but said they must abide by an “equal opportunity” rule that forbids discrimination based on sexual orientation or gender identity.

Justice Amy Coney Barrett said state officials “chose to impose a condition” they knew those Catholic schools “will be unable to agree to.”

In contrast, the court’s three liberals said the Catholic schools were not seeking equal treatment but a new right to discriminate.

“You are asking for a special rule for religious schools,” said Justice Ketanji Brown Jackson.

Justice Sonia Sotomayor said the state opened the funding program to all schools, including church-related schools. “The Catholic schools are not being excluded. They’re choosing not to participate because they won’t get an exemption,” she said.

In the last decade, the court’s conservative majority has strengthened the 1st Amendment’s protection for the “free exercise of religion.”

States and local governments need not offer public funds to private groups and entities, the justices said. But if they do so, they may not single out religious schools or people and deny them public funding that is open to all.

They struck down laws in Minnesota and Maine that denied scholarships or school funds to students who enrolled in a religious school. And they ruled the city of Philadelphia could not bar Catholic social services from providing foster care because they did not work with same-sex couples.

Despite that history, Colorado adopted a strong “equal opportunity” law in 2022 to go with its new state funding for preschools.

The state voters had approved a ballot measure in 2020 to provide public funding for a year of preschool prior to kindergarten. Both public and private schools were encouraged to participate.

The state pays for 15 hours per week and provides parents about $6,000 in tuition.

Lawmakers said eligible schools must provide children “an equal opportunity to enroll regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level or disability.”

The Archdiocese of Denver oversees 34 Catholic preschools. Parents were told they must support and affirm the teachings of the church, including on matters of gender and marriage.

In light of the new funding law, the church asked for an accommodation that would allow “faith based providers to participate in the program without compromising their sincerely held religious beliefs.”

The state refused. It said “no provider may discriminate against children or families in violation of the state statute.”

St. Mary Catholic Parish in Littleton, Colo., and two of its parents sued, alleging a violation of the 1st Amendment.

Their attorneys — the Becket Fund for Religious Liberty — argued that no LGBTQ+ family has been harmed or claimed discrimination under the preschool funding law, while “thousands of Catholic families have zero Catholic preschools available to them.”

They lost before a federal judge and the 10th Circuit Court. Those judges said the state did not target the Catholic schools or treat them differently from others because of their religious beliefs.

The Supreme Court agreed in April to hear the case of St. Mary Catholic Parish vs. Roy.

During Tuesday’s argument, Justice Brett M. Kavanaugh voiced dismay over how this case arose.

“This seems like a would-be solution in search of a problem. Why are we here?” he asked a state attorney.

He and Barrett said same-sex couples did not seek to have their children enrolled in Catholic preschools. Meanwhile, other parents were denied state funds because of the marriage and family policies of the Catholic parishes.

The court is likely to hand down a decision in several months.