Two interesting opinions today.

First up is a rarity. Normally, claims of ineffective assistance of counsel (IAC) are not considered on direct appeal and must wait until habeas/2255. But today CA3 reached an IAC claim on appeal because the defendant might not be eligible for habeas because he is not in custody. The panel held that the defendant’s counsel was prejudiced by trial counsel’s failure to argue that a VI harassment statute violated the 1st Amendment, and it remanded for factfinding as to whether counsel’s performance was deficient. The remand is important because it reflects the court’s focus on counsel’s actual reasons. Significant case for habeas lawyers like me.

The case is Government v. Vanterpool. Opinion by Greenaway, joined by Rendell and Fuentes. Arguing counsel were Kyle Waldner for the defendant and Kimberley Salisbury for the government.

The day’s other case arises from suits brought by African American students against a wealthy suburban school district. A core allegation was that the district discriminated against African American students in deciding who is assigned to special education classes. The district court ruled for the district, and today a divided CA3 panel affirmed.

The case is Blunt v. Lower Merion School District. Opinion by Greenberg, joined by Ambro (except for one subsection); dissent by McKee (except for two subsections).

McKee’s 53-page dissent begins:

Today we hold that a group of African-American
parents and students have not produced  sufficient evidence to
have a jury decide if race is a factor in how African-American
students are assigned to special education classes in their
school district. My colleagues reach this result even though
the record contains numerous issues of disputed  fact that
would support plaintiffs’ claims if a jury resolved those
disputes in the plaintiffs’ favor.
The allegations here are not pretty. No one likes to
think that a school district, especially one with an outstanding
educational reputation, allows race to be a factor in assigning
African-American students to special education classes.
However, there is sufficient evidence on this record to
establish that a trial is warranted to determine whether this
school district did exactly that. I therefore write separately to
express my strong disagreement with my colleagues’
conclusion that these plaintiffs cannot survive summary
judgment.