Category Archives: civil rights

Huntington v. Huntington Branch, NAACP

488 U. S. 15

November 7, 1988

A town zoning law allowed the construction of multifamily housing projects only in the town’s urban core. Nearly all the town’s black population lived in the urban core, and the outlying areas were all almost entirely white. The local NAACP asked the town to amend their zoning code to allow for multifamily housing projects to be built in the non-urban white areas. The town refused, and the NAACP charged that this refusal perpetuated housing segregation, and violated the 1968 Civil Rights Act.

In a 6-3 per curiam ruling, the Court held that the town had indeed violated the 1968 Civil Rights Act. The Court offered no analysis of its own, but gave its imprimatur to the broad findings of the lower court that the disparate impact standard would be used to decide the case, and that the town’s justification for not amending the zoning code was insufficient. White, Marshall, and Stevens, without opinion, noted that the case should have received oral argument.


Watson v. Fort Worth Bank & Trust

487 U. S. 977

June 29, 1988

A black bank employee was passed over for promotions on four separate occasions. She eventually launched a wide-ranging class action lawsuit, alleging that the bank discriminated not just against her, but against other blacks. Promotion decisions were made based on subjective criteria, and lower courts held that decisions based on subjective criteria were not amenable to a disparate impact suit. Instead, only objective criteria like tests or educational requirements could be challenged as discriminatory because of their disparate impact on minorities.

Unanimously, the Court held that subjective criteria could be attacked in a disparate impact suit (Kennedy did not participate). O’Connor stressed that it would frustrate the goals of the Civil Rights Act if only objective criteria counted, because that could leave a large swath of discriminatory practices beyond remedy. If plaintiffs could show that a minority group was disadvantaged in promotions through subjective means, there would be a prima facie case of discrimination.

In a portion joined by Rehnquist, White, and Scalia, O’Connor noted that this new standard would have to be carefully guided, or else employers would probably resort to quotas just to protect themselves from potential suits. She noted that the plaintiff would always have the ultimate burden of proof in disparate impact cases, that employers would be able to attack bare statistics as not persuasive enough, and that employers would have to be able to argue that its subjective criteria were geared toward legitimate business purposes.

Blackmun, joined by Brennan and Marshall, did not like O’Connor’s attempt to cabin the reach of the ruling. He said that, based on precedents, the employer would shoulder the burden of proof once the plaintiff made a prima facie case. And he thought O’Connor’s solicitude to an employer’s plea of legitimate business motivation was also unfounded in prior disparate impact precedents. Blackmun felt that a very robust disparate impact standard was necessary to stop employers from hiding discrimination behind a smokescreen of subjective evaluation. Stevens concurred in judgment. He agreed with the central point that subjective criteria could be attacked, but declined to spell out the implications as all the other Justices had tried to do.

Disparate impact theory is a hopelessly manipulable stratagem. It’s easy for plaintiffs to prove, and almost impossible for employers to conclusively disprove. It’s a great scheme if you’re an unscrupulous trial lawyer looking to make some quick bucks. In college, I had a friend whose dad had to leave a business because of one of these BS disparate impact suits. As she explained to me, her dad actually hired more women than men overall, and even promoted more women than men overall. But because the percentage of women who got promoted was smaller than the percentage of men who got promoted, his business was accused of sex discrimination, and he knew that fighting the suit was a losing battle. Until there’s a way to cut down on cynical manipulation of the system like this, I have no use for disparate impact claims.

United States v. Kozminski

487 U. S. 931

June 29, 1988

The Kozminski family ran a dairy farm, and they brought two mentally retarded people to work on it. The family made these two work extremely long hours seven days a week without pay, and used a variety of psychological manipulation techniques to keep them from leaving. The family was ultimately charged under two federal laws, which banned involuntary servitude, and conspiracy to practice involuntary servitude – obviously in reference to the Thirteenth Amendment. Jury instructions stated that involuntary servitude could be created exclusively through psychological coercion, as opposed to physical or legal coercion. The Kozminski family contended that this definition of involuntary servitude was far too broad.

The Court agreed in a 7-2 vote, but split 5-4 about the correct definition of involuntary servitude. O’Connor, writing for the majority, looked at various Thirteenth Amendment precedents, and concluded that only threats of legal or physical coercion could create the practice of involuntary servitude. The legislative history of various acts enacted on the basis of the Amendment also confirmed this more restrictive definition. O’Connor stressed that expanding the definition to include psychological manipulation would sweep too broadly, possibly making someone like a charismatic religious leader guilty under the statutes. She left it to the lower court to determine whether there was enough evidence in the record to convict the Kozminskis even under the narrower definition.

Brennan, joined by Marshall, agreed that the jury instructions swept too broadly, but felt O’Connor’s test was too narrow. His test was whether the means of coercion actually reduced someone to a slavelike state. Long hours, no pay, no days off, and squalid conditions added up to a slavelike condition, and that was what the Amendment and the enforcing statutes were meant to ban. Brennan noted that psychological coercion was very often far more effective than legal or physical coercion – the threat of having your house burned down is no less convincing than the threat of being beaten.

Stevens, joined by Blackmun, thought it unwise for the Court to attempt to formulate a precise definition. He trusted prosecutors, judges, and juries to intelligently apply, on a case by case basis, the broad Thirteenth Amendment terms of involuntary servitude. Based on the facts in the record, he thought the jury instructions were fine, and that a new trial was not warranted.

Here is another case where Brennan actually got the better of the more conservative Justices. While the majority was rightly concerned about limiting the legal reach of involuntary servitude, Brennan had exactly the right legal test to address those concerns. His points seem pretty well unanswerable, and I wish his opinion had been the majority one.

Schweiker v. Chilicky

487 U. S. 412

June 24, 1988

For a few years in the early 1980s, the Social Security administration was denying meritorious disability claims left and right. Congress finally stepped in to correct this by passing two different laws in consecutive years. Chilicky and others who temporarily lost their benefits during this era were not satisfied with the remedies provided by Congress. They sought a Bivens remedy – a judicially created cause of action that allowed for citizens to get monetary judgments against government agents who violated Constitutional rights. The question was whether a Bivens remedy should be created to address the alleged Due Process violations of the Social Security administration.

The Court ruled 6-3 that such a remedy would be inappropriate. O’Connor stressed that the Court should treat cautiously when creating new Bivens rights. They should not be created when Congress is capable of addressing the harm, and has decided against allowing redress. O’Connor said that Congress had considered the problem of erroneously denied disability claims several times in the 1980s, and never once hinted that claims against government agents themselves were the solution. Furthermore, allowing claims to proceed would bog down a Social Security administration that was already deeply bogged down in its duties. In a footnote, O’Connor dismissed as moot the question of whether one statute explicitly barred the creation of a Bivens remedy for Social Security violations.

In a concurring opinion, Stevens said that the statue referred to in the footnote did not explicitly bar a Bivens remedy. Brennan, joined by Marshall and Blackmun, was aghast at the majority’s contention that mere backpay of erroneously denied benefits was sufficient compensation for the harms suffered by Chilicky. They deserved extra remedies for the horrendous pain and suffering they endured before getting their disability payments back. Brennan could find no policy reasons for not creating a Bivens remedy. Congress had not, by its silence, communicated an intent to bar a Bivens remedy. Nor was Social Security a domain in which the expertise of Congress ought to be deferred to. He was also unsympathetic to the argument that Bivens suits would bog down the agency.

In the other Bivens case I’ve reviewed so far, I felt the majority was wrong to not allow for the claim. This one, I’m not so sure about. You do feel sorry for what Chilicky endured, but I’m not certain Bivens should be extended to cases where the right violated is partially government created. There is no unadorned Constitutional right to disability payments – it’s very much also a statutory one. I think that’s the place I’d draw the line.

Florida v. Long

487 U. S. 223

June 22, 1988

In the 1978 ruling Manhart, the Court ruled that pension contributions which differ based on sex are illegal. In the 1983 ruling Norris, the Court ruled that pension payouts which differ based on sex are illegal. Until the Norris decision, Florida had pension payouts which differed based on sex. There were two questions. First, could sex-based underpayment between Manhart and Norris be retroactively recouped. Second, could pension plans that started paying out before Norris be prospectively adjusted upward.

The Court answered these questions in the negative, in a 5-4 vote. Kennedy said that Manhart in no way implied that sex-based pension payouts were clearly illegal. Because that question remained entirely unsettled before Norris, there could be no liability for extra payment before the date of the latter decision. Kennedy explained that retroactive liability could destroy the fiscal workability of pension plans, and that it punished states for flaws that they had no way of knowing about. Moving on to the question of prospective adjustment, Kennedy claimed that it was still a retroactive remedy. It threw the balance of contributions and payouts off-kilter, and thus still punished states for violations they could not have known about.

Blackmun, joined by Brennan and Marshall, though Manhart clearly implied that all sex-based pension workings were illegal, be they contributions or payouts. Because Florida should have understood the implications of Manhart, he felt that workers should be entitled to retroactive payments since the Manhart decision, and an increase in payments going forward. Blackmun did concede that pensioners who began receiving payments prior to Manhart were out of luck. Stevens was bolder. He felt that every unequal paycheck was a new violation. Thus, even pensioners who began receiving payments before Manhart deserved to have all payments since that decision (and all payments going forward) adjusted upward.

This was a very good decision – once which favored prudential concerns over fiscally irresponsible utopianism. In fact, those ‘discriminated’ against in the payouts were men, not women, and the ‘discrimination’ was only present in some payout plans out of all those offered. This ruling was also good because it refused to penalize an institution for not correctly guessing the Supreme Court’s next doctrinal move. The Supreme Court has this horrendously annoying shtick of being ultra coy and cagey on a specific issue; but then, when it finally makes a direct ruling, it will pretend that this ruling should have been obvious for years beforehand. This is what the dissent tries to do to the Norris ruling – pretend that it was totally obvious from Manhart. It wasn’t, and I’m glad the majority slapped them down.

Felder v. Casey

487 U. S. 131

June 22, 1988

Wisconsin law said that any suit against government officials in state court had to wait until a notice process was gone through first. The plaintiff had 120 to describe the injury and damages sought to the officials, then the officials had 120 days to make it right, and then there were six months to file charges.  A victim of police beating who wanted to bring a 1983 case in state court said that this law was pre-empted by 1983 itself. The state responded that it was just a state procedural rule that did not affect the principal substance of 1983.

The Supreme Court ruled 7-2 that the Wisconsin law could not stop 1983 suits. Brennan said that the law frustrated several purposes and goals of 1983. It required a sort of state exhaustion first, by requiring the state to have an opportunity to correct the complaint prior to a suit. It acted as a too-short statute of limitations, by effectively giving victims only four months to initiate the action. And it was too deferential to the interests of state officials, giving them a kind of extended notice that no other potential defendants could receive. That the law only applied to state court suits did not matter to Brennan, because the outcome of a 1983 suit should not turn on whether it was filed in state or federal court – indeed, for there to be such a difference in notice requirements went against Erie principles.

White concurred to note that the Court had recently established the definitive statute of limitations for 1983 suits, and that the Wisconsin law, with an effective four month limit, violated it. O’Connor, joined by Rehnquist, dissented. Invoking nebulous purposes or goals of 1983 was not enough – there had to be some definitive facet of 1983 violated by the Wisconsin law, and none existed. Because litigants could always file a suit in federal court, it was of no concern that one extra procedural hurdle existed for state courts. She further contended that giving notice was easy, and was not a de facto statute of limitations.

O’Connor’s dissent may or may not be correct. I’m not entirely sure. But I do think that if the majority opinion was activism, it was one of those rare cases where it was at least good activism. The policy reasons articulated by Brennan for holding the Wisconsin law inapplicable to 1983 suits were pretty solid.

Supreme Court of Va. v. Friedman

487 U. S. 59

June 20, 1988

Virginia allowed lawyers licensed in other states to skip the Virginia Bar Exam if they lived in Virginia. Myrna Friedman, licensed by Illinois and DC, had worked in Virginia for many years, but lived across the river in Maryland. She applied for admission without the Bar Exam, but was denied because of her Maryland residency. Friedman charged that this rule violated the Privileges and Immunities clause, especially because a recent Supreme Court ruling prohibited states from denying non-residents a law license if they passed the state bar exam.

The Court ruled 7-2 that Virginia could not enforce its rule. Kennedy claimed that the Privileges and Immunities clause protected the rights of citizens to practice law regardless of state residency, and that laws burdening this were suspect. That Friedman could still be licensed by passing the Virginia Bar Exam was irrelevant, because it was a needless extra burden. Kennedy was unimpressed by Virginia’s argument that the rule was necessary to ensure the familiarity with Virginia law of those who got licensed. Friedman was clearly familiar with Virginia law. In any event, a different rule that Virginia lawyers had to practice in Virginia was sufficient for all the ends the state wished to achieve.

Rehnquist, joined by Scalia, dissented. He refused to accept that requiring residency for a law license violated the Privileges and Immunities clause (and he referred to a previous dissent for a more in depth explanation of why). He concluded that the Court’s dumb ruling could very well encourage Virginia to eliminate all reciprocity, and thus require all applicants to take the Bar Exam.

Supreme Court activism might be most blatantly visible not when it’s applied toward an evil end like abortion, but when it’s applied toward a merely dumb end like bar admission. When activism serves an evil cause, it’s easy to care more about the terrible real world effects of the decision than the reasoning behind the decision itself. Conversely, when activism is employed to reach a stupid but basically harmless result, the activism sticks out far more prominently.

West v. Atkins

487 U. S. 42

June 20, 1988

When a prisoner received insufficient care from a doctor contractually employed by a prison, he tried to sue the doctor under Section 1983. The question was whether the doctor could be legally described as “acting under color of state law.” The lower courts did not think so, and cited a 1981 ruling called Dodson where public defenders were held immune from 1983 suits.

The Supreme Court unanimously disagreed. Blackmun said that the doctor was working for the state prison, and that the prisoner could not choose another doctor. The fact that the doctor worked for the prison only by contract was totally irrelevant. He was a state actor with respect to the prisoner. Blackmun distinguished Dodson because public defenders have a unique adversarial relationship with the government. Though doctors exercise independent professional judgment, their interests are in no way adversarial to the prison.

Scalia concurred in judgment. He disagreed with the Court’s assumption that the right the doctor allegedly violated “under color of law” was the Eighth Amendment. Scalia thought it would be the 14th Amendment, if anything, that the doctor violated. Frankly, I’m not sure the doctor violated either one. I can certainly accept this ruling that prison doctors are state actors. I’m less certain that insufficient medical care violates any Constitutional right.

Webster v. Doe

486 U. S. 592

June 15, 1988

The Director of the CIA fired an employee upon finding that his homosexuality was a danger to the agency. The employee charged that this both violated the Administrative Procedure Act (APA), and a grab bag of Constitutional protections. The CIA argued that the statutes governing the CIA gave the director full, and unreviewable discretion to dismiss employees when he finds cause.

The Court ruled 8-0 that the firing could not be challenged on APA grounds, but held 6-2 that a Constitutional challenge could at least be entertained (Kennedy did not participate). Rehnquist said that for an APA challenge to firings, the laws and regulations relevant to the agency need to have some meaningful standards. The CIA, by its governing statutes and policies, really did seem to give the Director practically unreviewable discretion in personnel decisions. Rehnquist did not think the governing statute clearly preempted Constitutional challenges though. A remand would be necessary to get the record developed further on just what the exact Constitutional issues were.

O’Connor dissented from the Constitutional portion. She felt that the CIA’s business was too top secret for a Constitutional challenge to a firing to be appropriate. Scalia concurred in judgment on the APA portion, but he thought the majority set the bar too high in how few governing policies there needed to be before the Court would accept unreviewable agency discretion. He strongly dissented about the Constitutional portion. There was no statutory evidence that the Director’s unbounded discretion was to exclude Constitutional issues. Indeed, Scalia claimed the right to Constitutional challenges should not be lightly presumed. The decision could open Pandora’s box on a number of fronts – would it mean that the president could not dismiss a cabinet member because he disliked the cabinet member’s religion?

While I’m not too upset about the ruling, Scalia is definitely more tightly reasoned about the Constitutional issue. I also enjoyed a digression of his, where he debunked the notion that Constitutional safeguards are necessarily more important or sacred to a person than other safeguards. “A citizen would much rather have his statutory entitlement correctly acknowledged after a constitutionally inadequate hearing, than have it incorrectly denied after a proceeding that fulfills all the requirements of the Due Process Clause.” This is a great, and usually unappreciated point. The legal system does care about stupid procedures in the Bill of Rights far more than actual injustices.

Loeffler v. Frank

486 U. S. 549

June 13, 1988

A Postal Service employee named Loeffler challenged his firing as discrimination under the 1964 Civil Rights Act. He was reinstated with back pay, but he wanted prejudgment interest too. Traditionally, government agencies have been immune from prejudgment interest, but Loeffler was undaunted, and argued that the postal reorganization of 1970 had waived interest immunity.

The Court ruled 5-3 that Loeffler could obtain prejudgment interest (Kennedy did not participate). Blackmun stressed that the postal reorganization had allowed the agency to “sue and be sued,” a clause that has the effect of making government agencies basically like private companies when it comes to lawsuits. The reorganization thus waived interest immunity for all time. True, in a case against the Library of Congress, the Supreme Court had ruled that the Civil Rights Act, standing alone, did not waive interest immunity, but the Library of Congress had no such “sue and be sued” provision like the Postal Service did. Blackmun said that legislative history supported all of these conclusions.

White, joined by Rehnquist and O’Connor, filed one of those annoying dissents which effectively said ‘I agree with what the lower court judges said, but will not repeat their reasoning here – so go find the lower court ruling and read that instead.’