Constitutional Law Prof Blog

Appeals Court Administratively Stays Preliminary Injunction Halting Ban on Transgender Military Service

The D.C. Circuit granted an administrative stay this week of the district court's March 18 preliminary injunction that halted enforcement of the Administration's ban on transgender persons serving in the military.

The order in Talbott v. United States of America is temporary, and only "to give the court sufficient opportunity to consider the emergency motion for stay pending appeal." According to the court, it "should not be construed in any way as a ruling on the merits of that motion." Moreover, "[i]f any action occurs that negatively impacts service members under [the Administration's ban] before the court lifts the administrative stay, the plaintiffs may file a motion to lift the administrative stay, and the court will consider it expeditiously." The court also ordered quick briefing on the Administration's motion to stay pending appeal. (Here's the complete docket at the D.C. Circuit.)

The precise effect of the administrative stay is uncertain. On the one hand, it's a stay, and allows the Administration to enforce the ban. But on the other hand, the court will consider any motion to lift the stay in response to Administration enforcement "expeditiously." On the third hand, briefing on the Administration's motion to stay pending appeal (which, unlike the administrative stay, requires the court to assess the merits) is due this week. Whatever happens, it seems, the court will quickly get to the merits (or, more accurately, the likelihood of success on the merits).

All this comes in response to a district court preliminary injunction, which halted enforcement of the Administration's ban on transgender persons serving in the military. In granting the PI, the court said that the ban was based on mere animus, and that it failed at both intermediate scrutiny and rational basis review.

The thorough memo in support of the PI is well worth a read--on the back-and-forth recent history of military service by transgender persons, on the deference that courts owe to the Executive in military matters, and on the fitness of the ban under intermediate scrutiny and rational basis review.

Department of Ed Threatens to Withold Federal Funds for Schools with DEI and More

The U.S. Department of Education issued a "Dear Colleague" letter on Friday that threatens to withhold federal funds from schools that fail to comply with the Trump Administration's view of equal protection.

The move is significant, because it seems to expand what the Supreme Court has previously considered a violation of equal protection, and threatens to withhold federal funding for schools that the Administration deems in violation.

As to equal protection: The letter says that the Court's ruling in SFFA v. Harvard (2023), the case in which the Court struck higher-education affirmative action, applies beyond schools' admissions programs to all programming:

Although SFFA addressed admissions decisions, the Supreme Court's holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person's race, the education institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

The letter then also took aim at race-neutral programs that, upon "a closer look . . . are, in fact, motivated by racial considerations." (Citing Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1977).)

Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one. It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase diversity.

The letter also called out "DEI programs."

As to withholding federal funding: The letter says that the Administration will "take appropriate measures to assess compliance" within 14 days, "including antidiscrimination requirements that are a condition of receiving federal funding." It says that schools that the Administration deems in violation could "face potential loss of federal funding."

The letter invites "[a]nyone who believes that a covered entity has unlawfully discriminated [to] file a complaint with [the DOE Office of Civil Rights]," and provides a link to OCR's complaint page.

Ninth Circuit Upholds Title IX's Exemption for Religious Institutions Against Establishment Clause, Equal Protection Challenges

The Ninth Circuit ruled that Title IX's exemption for religious organizations from its prohibition on sex discrimination did not violate the Establishment Clause or equal protection. The court also dismissed the plaintiffs' Administrative Procedure Act claim for lack of standing.

The case, Hunter v. U.S. Department of Education, arose when LGBTQ+ students alleged that religious schools discriminated against them on the basis of their gender identity, and that Title IX's exemption for religious institutions allowed that discrimination in violation of the Establishment Clause and equal protection.

The Ninth Circuit disagreed. The court applied the history-and-tradition test for the Establishment Clause from Kennedy v. Bremerton School District and ruled that there's a long history of accommodating religion, even if that history doesn't include accommodations from government benefit programs exactly like Title IX:

[These cases] evidence a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause. The examples provided by the Department demonstrate that religious exemptions have "withstood the critical scrutiny of time and political change." And given that this exact law did not exist at the Founding, that more recent (albeit, still lengthy) tradition is of greater salience.

As to the equal protection claim, the court said that Title IX's exemption meets intermediate scrutiny, and therefore doesn't violate equal protection:

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion. As the Department states, the "statutory limitations on its application ensure a substantial fit between [ends and] means." It only exempts educational institutions (a) controlled by religious institutions and (b) only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organizations. The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution's exercise of religion. Thus, the exemption substantially relates to a "fundamentally important" government interest.

District Court Rules Minority Business Development Agency's Racial Presumptions Unconstitutional

Judge Mark Pittman (N.D. Tex.) ruled today that the MBDA's racial presumptions violate equal protection and permanently enjoined the Agency from using them. (The court previously entered a preliminary injunction.)

The case, Nuziard v. MBDA, tests the MBDA's presumption that members of certain identified racial groups qualify as "socially or economically disadvantaged" under the MBDA Act. Importantly, the Act doesn't say that members of other groups don't qualify for MBDA services and assistance; but it says that only members of the identified racial groups presumptively do.

The court ruled that this violates equal protection. Applying strict scrutiny, the court first acknowledged that the government had a compelling interest in remedying past discrimination in government contracting:

In sum, the record shows several examples of historic discrimination in which the government participated. Taken alone, that wouldn't be enough. The record also shows statistical analyses and disparity studies that raise an inference of government-linked discrimination. Taken alone, that wouldn't be enough, either. But combining the concrete examples with the robust empirics, the Court finds remedying past discrimination in government contracting is a compelling governmental interest.

But the court went on to rule that the presumptions weren't narrowly tailored to meet that interest. The court said that the racial categories are imprecise, that they're based on stereotypes, that there's no endpoint to their use, and that the MBDA has other ways to remedy the government's past discrimination.

Supreme Court (Effectively) Ends Affirmative Action in Higher Education

The Supreme Court ruled on Thursday that race-based affirmative action programs at Harvard and the University of North Carolina violated Title VI of the Civil Rights Act and the Equal Protection Clause, respectively.

Still, the Court didn't categorically overturn all race-based affirmative action programs; instead, it seemed to leave a theoretical possibility that a school could design a program to meet its tightened test. But at the same time, under the ruling it's hard to see how a school could "narrowly tailor" a program to serve a sufficiently "compelling interest" to meet the strict-scrutiny test that the Court applied in the cases.

The ruling doesn't address whether programs at the military academies violate equal protection. And it suggests that schools could use race-neutral means to achieve racial diversity, including considering student admission essays that focus on a student's race (by overcoming racial adversity, for example). But the Court also cautioned that schools shouldn't use this kind of admission statement in ways that would undermine the Court's core holding--that government labeling by race (for any purpose) is highly suspect, and subject to the most rigorous judicial scrutiny.

All this means that schools that seek racial diversity will scramble now to figure out how to achieve it in race-neutral ways. And that, in turns, means that we'll see new rounds of litigation for years to come, challenging those efforts as merely alternative forms of racial discrimination in disguise.

In short, the Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College held that the schools' programs didn't satisfy strict scrutiny, because (1) their interest (achieving the educational benefits of diversity) was too loosely defined to be "compelling," and (2) their programs don't serve this interest, anyway, because the racial categories that the schools use are "imprecise." Moreover, the Court said that the schools' use of race stereotypes applicants of the same race (by assuming they all think alike), harms certain students of other races, and lack an endpoint.

The Court noted in footnote four that the ruling doesn't necessarily apply to the U.S. military academies--that they have "distinct interests" that might set them apart. The Court also  noted that "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." But the Court quickly warned that schools shouldn't use this opening to side-step its ruling--to use race, but try to put it under the radar.

Justice Thomas concurred, writing "to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court's [affirmative action] jurisprudence; to clarify that all forms of discrimination based on race--including so-called affirmative action--are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination." Justice Gorsuch concurred, joined by Justice Thomas, "to emphasize that Title VI of the Civil Rights Act of 1964" also (in addition to the Equal Protection Clause) prohibits the schools' race-based affirmative action programs. Justice Kavanaugh concurred, arguing that the ruling "is consistent with and follows from the Court's equal protection precedents . . . ."

Justice Sotomayor wrote a scathing dissent, joined by Justices Kagan and Jackson, arguing that the ruling "stands in the way [of the promise of Brown v. Board of Education] and rolls back decades of precedent and momentous progress."

Justice Jackson wrote an equally scathing dissent, joined by Justices Sotomayor and Kagan. She wrote "to expound upon the universal benefits of considering race in this context" and to point out how the plaintiffs' position and the Court's ruling "blinks both history and reality in ways too numerous to count."

Both dissents offered a fabulous history lesson on race . . . and a thorough rejoinder to Justice Thomas's "originalist" view.

Court Halts Florida's Ban on Transgender Care for Minors

A federal district court this week preliminarily enjoined Florida officials from enforcing the state's ban on medical care for transgender minors against the three plaintiffs and their healthcare providers.

The court in Doe v. Ladapo held that the ban likely violated equal protection and the right to parent. In short, it said that Florida had no good reason for the ban, especially in light of the overwhelming medical evidence supporting treatment, and that its stated purposes were plainly pretextual.

The ruling follows Brandt ex rel. Brandt v. Rutledge, a ruling from the Eighth Circuit and the only circuit court ruling on the issue.

District Court Strikes California's Corporate Board Diversity Requirement

A federal district court yesterday ruled that California's corporate board diversity requirement is an unconstitutional racial quota.

The case, Alliance for Fair Board Recruitment v. Weber, tests California's requirement that publicly held corporations in the state have a minimum number of directors from designated racial, ethnic, and LGBTQ classes. Opponents argued that the requirement violated the Equal Protection Clause.

The district court agreed. The court ruled that the requirement as to race was an unconstitutional quota, and that the requirement as to sexual orientation and identity was not severable from the requirement for race. The result: the entire requirement fell.

Because the court said that the requirement was categorically unconstitutional as a quota, it declined to assess the requirement under strict scrutiny--and therefore to address the state's claim that the requirement was designed as a lawful affirmative action plan to remedy prior illegal discrimination.

Jail Policy for Foreign-Born Detainees Violates Equal Protection

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eighth Circuit ruled this week that a county jail's policy of holding otherwise releasable detainees based on their nation of birth violated equal protection.

The case, Parada v. Anoka County, tested the county jail's policy of holding every otherwise releasable detainee born outside the United States until jail authorities contacted ICE. The wait could last between 20 minutes and 6 hours.

The Eighth Circuit said the policy violated equal protection. That's because it discriminates based on nation of birth, far too rough a cut to satisfy the strict scrutiny standard that applies when government discriminates by national origin. The court noted that the county could have detained persons based on citizenship, instead, a classification that's both neutral with regard to national origin and a closer fit to the county's objectives.

While the court assumed for the purpose of analysis that the county's interest in its policy was "compelling," the court also expressed "doubts about it." It wrote, "Anoka County makes no suggestion it has an interest in stemming the tide of illegal immigration. It instead frames its interest as giving 'ICE an opportunity to investigate the legal status of individuals who [are] already in custody' without 'overburden[ing]' the agency by passing along too many false positives."

Fifth Circuit Rebuffs Tanning Business Case Against COVID Shutdown

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit rejected claims by a tanning business that COVID shutdowns violated its equal protection rights and amounted to an uncompensated taking.

The case, Golden Glow Tanning Salon v. City of Columbus, Mississippi, arose when Columbus ordered a seven-week shutdown of certain businesses in the early days of the COVID pandemic. Golden Glow sued, arguing that the shutdown violated equal protection and constituted an uncompensated taking.

The Fifth Circuit rejected both claims. The court applied rational basis review to Golden Glow's equal protection claim, and concluded that Columbus's action was reasonable, even if a little both over- and underinclusive. As to takings, the court rejected Golden Glow's claim that the shutdown effected a per se taking, because Golden Glow failed to demonstrate that the shutdown "rendered the entire property 'valueless.'"

Judge Ho concurred, and pitched a case for the right to earn a living as a fundamental right. Judge Ho argued that the right "to pursue callings" has even better historical foundations than other unenumerated fundamental rights.

Supreme Court to Take Up Affirmative Action Monday

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral arguments in the affirmative action cases on Monday. The Court's expected to overturn its rulings allowing race-based affirmative action in higher education, or at least to limit them sharply.

Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

This case involves two different university admissions policies, but they are very similar. Both policies assess each applicant based on a variety of factors, including race, as part of a holistic and individualized review in order to achieve the educational benefits that come from student-body diversity. Neither policy uses racial quotas or points or otherwise assigns a rigid or categorical benefit based on an applicant’s race. Both institutions continue to use race as one of many factors in admissions only after they examined whether they could achieve their desired student-body diversity without race, and determined that they could not. And both institutions engage in ongoing efforts to assess their affirmative-action programs and to determine whether race-neutral alternatives might achieve the broad diversity they seek.

That said, let’s look at each policy more carefully.

Under Harvard’s policy, the school first compiles an application file for each candidate that includes a transcript, standardized test scores, and recommendation letters; an overview of the applicant’s high school; information about the applicant’s extracurricular activities, athletic participation, honors, and prizes; the applicant’s essays; the applicant’s intended field of study; the applicant’s family and demographic information; and reports from alumni or staff interviews.

A “first reader” then makes a tentative assessment of each applicant in four areas: academic, extracurricular, athletic, and personal. These numerical ratings provide a “preliminary” “starting point” for the Admissions Committee’s later assessment. The school does not admit or deny students based on these ratings. And first readers do not consider race in assigning an initial rating.

Next, first readers assign a “school support rating” and an “overall” rating. In assigning the overall rating, first readers may give “tips” to qualities such as unusual intellectual ability; strong personal qualities; outstanding creative or athletic abilities; or backgrounds that expand the socioeconomic, geographic, racial, or ethnic diversity of the class. First readers can also give tips to recruited athletes, legacy applicants, applications on the Dean’s or Admissions Director’s interest lists, and children of faculty and staff.

First readers send the applications of competitive candidates to subcommittee chairs, who also assign preliminary ratings. Regional subcommittees meet to decide which candidates to recommend to the full Admissions Committee.

The full 40-member Admissions Committee then meets over several weeks to discuss candidates and make admissions decisions based on all the information in the applicants’ files. (At the full Committee stage, the earlier preliminary ratings “fade into the background” and the Committee focuses on the whole files.) During this process, the Dean and Director of Admissions periodically review one-page summaries of the applicant pool and the tentatively admitted class. These “one-pagers” include academic interests, geographic region, citizenship status, socioeconomic circumstances, gender, race, and legacy and recruited-athlete status. This information is used to forecast yield rates (which can vary across characteristics), “to evaluate the effectiveness of efforts to recruit diverse students,” and to “identify anomalies in the representation of students with certain characteristics, including race.” Based on this information, the Admissions Committee may “give additional attention to applicants” from an underrepresented racial group in order “to ensure any significant decline is not ‘due to inadvertence or lack of care.’” If the expected yield exceeds the available class slots (around 1,600), the Committee can reduce the admitted class based on one or more characteristics of each applicant, including race.

Harvard also uses several race-neutral programs to achieve diversity. For example, it engages in targeted outreach to encourage racial minority students to apply, and it offers generous financial support to make the costs of attendance more affordable for all students. In 2017, Harvard established a committee to evaluate race-neutral alternatives. But after considering 13 separate alternatives, “the committee concluded that none would currently allow Harvard to achieve the educational benefits of diversity while maintaining its standards of excellence.” The school now started a process to reevaluate that conclusion.

Under UNC’s policy, the school compiles an application file for each candidate, usually from the Common Application, a standard application used by hundreds of institutions. Students may indicate a range of characteristics and background information, including military service, foreign-language proficiency, career interests, and race.

Readers in UNC’s admissions office then read each file guided by a non-exhaustive list of more than forty criteria, including academic performance, athletic or artistic talents, and personal background. Readers then make a provisional decision. A second reader reviews a majority of the files. Senior admissions office personnel review a sample of files. And finally, a committee of veteran readers reviews provisional decisions from each high school.

UNC’s individualized, holistic review “considers all aspects of an applicant’s background and values many kinds of diversity.” For example, UNC considers veteran status, geographic diversity, community service, socioeconomic status, work history, creativity, capacity for leadership, and more. When the school considers race, it does so alongside these other factors. “[A]n applicant’s race may occasionally tip the balance toward admission in an individual case, but almost always does not.”

Since 2004, UNC has also implemented several race-neutral efforts to achieve diversity. For example, the school provides resources to make the cost of attending affordable to all students. It “engages in significant recruiting efforts to encourage diverse students to apply and enroll.” It partners with underserved high schools in the state to increase applications from low-income, first-generation, and underrepresented applicants. And it “recruit[s] high-achieving community-college students.” More recently, UNC formed a working group and, separately, a committee on race-neutral alternatives in admissions. While the committee continues to study and analyze race-neutral alternatives (including expert analysis and the district court’s findings in this case), UNC has “not yet identified a workable race-neutral alternative,” although it “remains steadfastly committed to doing so.”

Students for Fair Admissions, Inc. (SFFA), a membership organization that spearheads challenges to affirmative-action programs, sued Harvard, arguing that the school impermissibly used race in its admissions decisions, to the detriment of Asian Americans. The district court rejected SFFA’s claim and upheld Harvard’s admissions program; the United States Court of Appeals affirmed; and the Court granted certiorari.

SFFA also sued UNC. The district court similarly rejected SFFA’s claims. Given that the Court had agreed to hear the Harvard case, SFFA asked the Court to bypass an appeal to the circuit court and grant “certiorari before judgment.” The Court agreed and consolidated the UNC case with the Harvard case.  

CASE ANALYSIS

Under Court precedent, a college or university can use race in its admissions policy so long as the use of race is narrowly tailored and necessary to achieve a compelling government interest. (This test, “strict scrutiny,” is the same test that the Court applies whenever the government uses race in whole or in part to identify individuals for any purpose.) This means that a college or university can use race as one factor among many in a holistic, individualized review of each applicant in order to achieve the educational benefits that come from student-body diversity. Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. University of Texas, 136 S. Ct. 2198 (2016). But an institution cannot use racial quotas, assign points for race in the admissions process, or assign any other rigid, categorical benefit according to an applicant’s race. (The Court adopted these standards for public college and universities, like UNC, under the Equal Protection Clause. But they apply exactly the same to private institutions that receive federal funds, like Harvard, under Title VI.)

In challenging the Harvard and UNC policies, SFFA argues first that the Court should overturn Grutter and categorically prohibit any use of race in university admissions. It argues that under Brown v. Board of Education and its progeny, schools cannot use race “as a factor in affording educational opportunities.” And “[b]ecause Brown is our law, Grutter cannot be.” Moreover, SFFA says that the use of race in university admissions is based only on “stereotyping” (that applicants can contribute to ideological diversity because of their race), not evidence, and that Grutter wrongly gives universities more deference than other institutions (like the military) in their use of race. It claims that Grutter has led to all kinds of problems, including “anti-Asian stereotyping, race-obsessed campuses, declines in ideological diversity, and more.” And finally, SFFA contends that “Grutter cannot generate serious reliance interests,” because the ruling itself predicts that universities will no longer need affirmative-action programs by 2028.

SFFA argues next that even if the Court retains Grutter, both Harvard and UNC violate its standards. It says that both schools “award mammoth racial preferences to African Americans and Hispanics.” SFFA claims that neither institution plans to stop using race in its admissions policy. It contends that neither school seriously considered race-neutral alternatives to achieving diversity, at least “[u]ntil they were sued.” And SFFA says that Harvard actively uses race against Asian Americans.

The schools counter (separately, but raising similar arguments) that the Court should not overturn Grutter. They claim that the original understanding of the Fourteenth Amendment (and by extension Title VI) allows the government to use race far more expansively than Grutter in order to address racial inequalities, and that generations of legislators have done just that. They say, contrary to SFFA, that Grutter is true to Brown, because, unlike Brown, affirmative action doesn’t categorically exclude anyone, because affirmative action draws on Brown’s acknowledgment of the importance of education, and because affirmative action is designed to achieve broad diversity that benefits all students. They contend that affirmative action does not stereotype, as SFFA claims. Instead, they say that race indisputably informs perspectives and contributes to ideological diversity. And they assert that Grutter itself prohibits exactly the kind of harms that SFFA describes, like discrimination against Asian Americans.

The schools argue next that their admissions policies easily satisfy Grutter’s standards. They claim that their policies use race as one of many factors in a holistic, individualized review of each candidate in order to achieve the educational benefits that come from broad diversity. They contend that they have considered and used race-neutral alternatives, but that these are insufficient, and that they engage in ongoing efforts to assess their use of race and explore alternatives. They say that the lower courts in both cases came to these same conclusions, and that SFFA badly distorts the record by claiming otherwise.

The government weighs in as amicus in support of the schools, making largely the same arguments. The government adds that it benefits from diversity in higher education in its many institutions and functions. (Notably, the government’s brief is signed by the general counsels for the Department of Defense, the Department of homeland Security, the Department of Education, the Department of Health and Human Services, the Department of Commerce, and the Department of Labor, in addition to the Department of Justice.)

 

SIGNIFICANCE

This case tests the continuing vitality of Grutter and the Court’s approach to race-based affirmative action in higher education. The lower courts in both cases ruled, after exhaustive reviews, that both schools’ affirmative-action policies satisfied Grutter’s demands. They also ruled that both schools adequately explored race-neutral alternatives to achieve the kind of broad diversity they sought, but that the schools ultimately determined that race-neutral alternatives alone would not work. Finally, they found that the schools engage in ongoing efforts to assess their use of race and explore race-neutral alterantives. Given these comprehensive rulings that these policies so comfortably satisfy Grutter’s standards, there’s really no reason the Court would agree to hear these cases except to overturn Grutter, or at least to sharply limit affirmative action in higher education.

The impact could be dramatic. In those states that ban the use of race in higher-education admissions, racial minority enrollment in competitive institutions has plummeted, even when schools engage in aggressive race-neutral efforts to diversify. The University of Michigan and the President and Chancellors of the University of California drive this point home in their separate amicus briefs in support of the schools. These experiences tell us that if schools can’t use race at all, enrollment by racial minorities could similarly plummet across the board. This would obviously harm racial minorities. According to many amici, it would also harm the workforce, government operations at all levels, and society generally, as we’d all lose the benefits of diversity in our higher-education institutions.

In determining whether to overturn Grutter, look for the Court to wrestle with the meaning of Brown v. Board of Education. By one reckoning, Brown means that the government can’t use race to segregate schools, because, given systemic racism, racial segregation inevitably results in inequalities, even for otherwise “equal” schools. (“Separate is inherently unequal.”) In other words, the government can’t use race to harm children. This view supports affirmative action, because the purpose isn’t to harm applicants, but rather to benefit all students through broad diversity.

But by another reckoning, Brown means that the government can’t use race at all, for any purpose. In other words, Brown prohibits any racial labelling, irrespective of the purpose or effect, and irrespective of broader systemic racism that might result in racial inequalities even under race-neutral government actions. Chief Justice Roberts captured this reading of Brown when he wrote that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). This view opposes affirmative action merely because affirmative action uses race at all, for any purpose.

This Court has already adopted the latter view of Brown in other contexts. It’s likely to adopt it here, too, to overrule Grutter or to sharply limit the use of race in university admissions.

Look, too, for the Court to wrestle with the original understanding of the Fourteenth Amendment. As Justice Ketanji Brown Jackson reminded us at oral argument earlier this month in Merrill v. Milligan, the Voting Rights Act case, the original understanding allowed the government to use race in order to redress racial inequalities. In other words, the Fourteenth Amendment wasn’t designed to ban racial labelling; instead, it was designed to remedy racial inequalities, and it allowed the government to use race to do so. This original understanding tends to support race-based affirmative action. (But remember: under Grutter, the purpose of affirmative action in higher education is to achieve the educational benefits that come from broad student-body diversity, not (necessarily) to remedy racial inequalities.)

Nevertheless, this is a Court that is not at all shy about overturning long-standing precedent, history notwithstanding. And all indications point to the Court overturning Grutter here.

High Court Reverses Wisconsin Supreme Court on State Legislative Map

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court earlier this week reversed the Wisconsin Supreme Court's ruling that adopted the governor's proposed state legislative map. The Court held that the state high court didn't adequately scrutinize the map under equal protection and sent the case back to the Wisconsin Supreme Court for a re-do. (The same day, the Court declined to reverse the state court's adoption of the governor's map for the state's congressional districts.)

The ruling is a short-term win for legislative Republicans against the Democratic governor. But because the state supreme court has a chance to reanalyze the governor's proposed map, the result may be the same--adoption of the governor's map.

The case, Wisconsin Legislature v. Wisconsin Elections Commission, arose when the state supreme court directed the governor and the state legislature, who couldn't agree on a map, to propose maps. The governor proposed a map that included a new seventh majority-black district--the current map includes only six--in order to comply with Section 2 of the Voting Rights Act. (Section 2 requires that a state's "political process" must be "equally open to participation" to members of racial minority groups, so that group members have an equal opportunity "to participate in the political process and to elect representatives of their choice.")

The court adopted the governor's map. The legislature then filed for a stay at the Supreme Court, arguing that the map used race in violation of the Equal Protection Clause.

The Court agreed. The Court noted that under equal protection a state's use of race as a "predominant" factor in redistricting must satisfy strict scrutiny. That means that a state must show that its use of race is narrowly tailored to meet a compelling government interest. The Court acknowledged that under Court precedent compliance with the Voting Rights Act is a compelling interest. But still, a state map must be narrowly tailored to comply with the VRA to satisfy strict scrutiny.

The Court held that the map failed this test. It said that the governor didn't sufficiently prove that a seventh majority-black district was necessary to comply with the VRA, or that the court didn't sufficiently assess whether the map was necessary to comply with the VRA. In particular, the Court said that the Wisconsin court failed to determine whether a race-neutral map that didn't include a seventh majority-black district could satisfy the VRA. (If so, the governor's map wouldn't be necessary to comply with the VRA.)

The Court remanded the case to the Wisconsin Supreme Court "to undertake a full strict-scrutiny analysis." This could mean that the court simply collects more evidence, sharpens its analysis, and re-adopts the governor's map. Or it could go in a different direction.

Justice Sotomayor dissented, joined by Justice Kagan. She argued that the Court's action was "unprecedented." That's because "summary reversals are generally reserved for decisions in violation of settled law," but law in this area "is hazy at best." She also claimed that the Court would do better to let an appropriate plaintiff bring a direct equal protection challenge or VRA challenge in the appropriate forum.

 

Court to Hear Arguments in Religious School Funding Case

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear arguments on Wednesday in Carson v. Makin, the case testing whether a state can exclude private schools with an overtly religious educational mission from a state program that provides public funds for private education. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Does a state violate the Religion Clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or "sectarian," instruction?

FACTS

Maine’s Constitution requires local governments to provide free public education to the K-12 students in the state. Maine divides its schools across 260 local school administrative units (SAUs), serving nearly 180,000 students.

Maine gives SAUs the option to either operate their own schools “or otherwise provide for students to participate in [kindergarten through grade twelve] as authorized elsewhere” by statute. Me. Rev. Stat. Ann. tit. 20-A, § 1001(8). More than half of the SAUs do not operate their own public schools. For those SAUs, state law provides two options: they can contract with another public or approved private school for some or all of its students, or they can pay tuition for its students at another public school or “the approved private school of the parent’s choice at which the student is accepted.” Me. Rev. Stat. Ann. tit. 20-A, § 5204(4). Maine is careful to say that this is not a typical school-choice or voucher program. Instead, Maine only allows parents who live in SAUs with neither their own public schools nor with contracts with other schools to choose from “a small group of private schools who demonstrate to the State that the educational program they provide is a suitable equivalent to public education.” (Less than 5,000 students live in SAUs that contract with other schools or that pay students’ tuition at a private school.)

Maine law sets certain requirements for approved private schools to receive public funds for tuition. Among other things, any private school approved for the receipt of public funds must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” Me. Rev. Stat. Ann. tit. 20-A, § 2951(2). Private schools typically self-identify as sectarian with the Maine Department of Education. But if there’s any question, the Department

considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith. While affiliation or association with a church or religious institution is one potential indicator of a sectarian school, it is not dispositive. The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.

Two sets of parents sued the state, arguing that the exclusion for tuition payments to sectarian schools violated the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. One set of parents, David and Amy Carson, send their daughter to Bangor Christian Schools, a sectarian school with an overtly religious educational mission. The other set, Troy and Angela Nelson, currently send their daughter to Erskine Academy, a nonsectarian school, but would like to send her to Temple Academy, a sectarian school also with an overtly religious educational mission. Under state law, the plaintiffs’ SAUs could not pay for tuition at these schools.

The district court ruled in favor of the state, and the United States Court of Appeals for the First Circuit affirmed. This appeal followed.

CASE ANALYSIS

This case implicates a couple strands of free-exercise jurisprudence. Let’s take a look in order to give some context to the parties’ arguments.

First, under the Free Exercise Clause, a generally applicable government action that is neutral with regard to religion is constitutional, so long as the action is rationally related to a legitimate government interest. That’s a very low-level test, and most government action will almost always pass.

But on the other hand, government action that targets religion, or that is based on anti-religion animus, must be narrowly tailored to meet a compelling government interest. That’s a very stringent test, and most government action will fail.

Next, the two religion clauses give states some limited room to make religion-based choices in designing their public policies. For example, the Court ruled in Locke v. Davey that a state could operate a program that provided scholarships for talented postsecondary students, even if it excluded students who pursued a degree in devotional theology. 504 U.S. 712 (2004). The state in that case adoption the exclusion pursuant to its own state constitution and in order to avoid direct state support of religion. The Court held that the exclusion fell in the “play in the joints” between the two religion clauses. On the one hand, the Court said that the state could include devotional theology students in the scholarship program without violating the Establishment Clause. But on the other hand, it said that the state’s exclusion didn’t violate the Free Exercise. The Establishment Clause didn’t compel the state to exclude devotional theology students, but the Free Exercise Clause didn’t require the state to include them, either. Under the play in the joints, the state could choose.

Finally, the Court more recently has interpreted Locke to say that a state may exclude the religious use of a state benefit, but that it may not exclude an otherwise qualified individual or organization based on religious status. The difference is between how a person or organization uses state resources, and what that person or organization is. For example, the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, (2017), that Missouri violated the Free Exercise Clause when it categorically excluded a Lutheran church’s school from a state grant program to resurface school playgrounds. The state excluded the school based only on the school’s affiliation with the church (its status), not because the school would use the funds for a religious purpose (its use).

Most recently, the Court ruled in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), that a state that provides tax credits for contributions to organizations that provided scholarships to private schools must also provide tax credits for contributions for scholarships to private schools controlled by a “church, sect, or denomination.” Again, the state impermissibly excluded religions from its benefits program based only on a school’s religious status, not its religious use of public benefits.

Against this backdrop, the parents argue first that the tuition exclusion for sectarian schools violates the Free Exercise Clause, because it “is neither neutral toward religion nor generally applicable.” They say that the Court “has long held that a law lacking either characteristic is subject to strict scrutiny,” and that the exclusion must fail.

The parents argue next that the First Circuit was wrong to apply the “use/status distinction” to dodge this result. They contend that there is simply no basis for the distinction. They assert that the Framers elected to protect religious “exercise,” and not belief or conscience, and that this covers both use and status. Moreover, they claim that the Court has never used the distinction “as grounds for eluding strict scrutiny of laws that discriminate based on religion.” To the extent that Locke says otherwise, the parents argue that the Court should overrule it.

But even if the Court applies the use/status distinction, the parents argue that Maine’s exclusion must fail. They say that the exclusion “forces students to choose between their free exercise rights and receipt of a public benefit,” that it “discriminates based on religious use and status in equal measure,” and that “it is not narrowly targeted at an essentially religious endeavor,” or use.

The parents argue that because the exclusion discriminates against religion, Maine must proffer an “historic” and “substantial” interest. But they say that Maine’s asserted interests are insufficient. For one, they contend that Maine’s interest in avoiding an Establishment Clause violation by funding sectarian education is legally flawed under Court precedent. For another, they claim that Maine’s interest in ensuring that public funds “support only the rough equivalent of public education” is neither historic nor substantial, and that the exclusion does not support it, in any event.

The parents argue next that the exclusion violates the Establishment Clause. They say that the exclusion lacks a secular purpose, that it has a principal effect of inhibiting religion, and that it requires excessive government entanglement with religion. As to that last point, they contend that the state, in order to enforce the exclusion, “must make intrusive inquiries and judgments regarding the school’s religious curriculum and activities” and, worse, must make judgments about a school’s religious status versus its religious use of public funds.

Finally, the parents argue that the exclusion impermissibly discriminates against religious schools in violation of the Equal Protection Clause. The parents point to the Fourteenth Amendment’s framer’s “concern[] with ensuring that religious educators supported by the Freedman’s Bureau could continue their efforts to educate the freedmen in the wake of the Civil War.” They say that “[i]t would be perverse” to hold that the Clause means less today than it did to the framers of the Fourteenth Amendment.

Maine counters first that the exclusion does not violate the Free Exercise Clause. Maine contends that this case is really about public education, and that its exclusion is merely designed to ensure that private schools that receive public tuition funds provide an education that substantially equivalent to public education. The state says that “religious education is nothing like a public education”: “An education that includes proselytization and inculcation in specific religious beliefs and supports the exclusion of some children and families is antithetical to a public education.” Maine asserts that while parents are free to provide their children with this kind of religious education, the Free Exercise Clause does not require the state to support it. Maine says that the exclusion is designed only to ensure that private schools that receive state fund provide the equivalent to a secular public education; it is not designed to target religion, or out of any anti-religion animus.

Maine argues that the Court has recognized that a state need not extend a public-benefits program for religious use, even if a state cannot deny participation in a public-benefits program based on religious status. The state claims that its system and criteria fall on the “use” side, and that its system and criteria fall in the permissible play-in-the-joints between the two religion clauses.

But even if the Court treats the exclusion as targeting religion, Maine argues that it satisfies strict scrutiny. The state says that it has a compelling government interest in providing a secular public education. And it claims that the exclusion is narrowly tailored to achieve this interest, because it only excludes religious uses of public funds, consistent with its interest in providing a secular public education.

As to the Establishment Clause, Maine argues that the parents’ approach is wrong, and “would turn that clause on its head.” That’s because Maine’s exclusion is designed to prevent the use of public funds for religious practices, not to promote religion. The state says that “[a]ny Establishment Clause concerns weigh heavily” in its favor, as the exclusion, if anything, helps to avoid Establishment Clause violations.

Maine argues that the same arguments that the exclusion does not violate the Free Exercise Clause also mean that the exclusion does not violate the Equal Protection Clause. 

Finally, Maine argues that the parents lack standing. The state says that “it is speculative whether a favorable ruling will result in the relief they seek,” because the evidence suggests that their preferred schools might not accept public funds. Maine claims that if the schools won’t accept public funds, any relief that the Court could grant would not redress their alleged injury, because the children would not be able to attend the schools at public expense, anyway.

(The government, as amicus in support of Maine, makes substantially similar arguments.)

SIGNIFICANCE

The Court in recent years has dramatically expanded religious liberties and the role of religion in public life. In rulings favoring religion over anti-discrimination laws, requiring state and local governments to treat religious organizations on par with secular organizations (even when that means that the government must support religion), and creating extraordinary exceptions for religions to broadly applicable and religiously neutral laws, the Court has moved incrementally, but manifestly, to expand religious liberties.

This case gives the Court a chance to expand religious liberties once more, or to cabin the expansion. In this case, it’ll likely come down to the use/status distinction. On the one hand, the Court could expand religious liberties by abandoning the use/status distinction altogether, or to blur the distinction by ruling that Maine’s exception applies to the religious private schools’ status (not use). This is not far-fetched. After all, the distinction is relatively new, since Trinity Lutheran, and, as Justice Neil Gorsuch argued in Trinity Lutheran and Espinoza, the line between status and use can be murky.

On the other hand, the Court could cabin the expansion by drawing a hard line between use and status, and ruling that that Maine’s exception applies to religious private schools’ use of the funds (not their religion status). This isn’t far-fetched, either; indeed, the facts support it: Maine introduced evidence that it applies the exemption only to schools that promote a faith or belief system, or teach the material through faith. If so, the Court’s ruling here would buck the Court’s larger trend toward greater religious liberties and a larger role for religion in public life.

Finally, Maine gave the Court a potential off ramp with its standing argument. The Court could rule that the parents lack standing for the reasons Maine says. This seems unlikely, though: Maine pitched this argument in its brief in opposition to the parents’ petition for certiorari, and the Court decided to take the case, anyway.

Sixth Circuit Upholds Michigan Schools Mask Mandate Against Free Exercise, Equal Protection Claims

Steven D. Schwinn, University of Illinois Chicago School of Law

The Sixth Circuit yesterday upheld Michigan's mask mandate in schools against free exercise and equal protection challenges. The mandate expired since the lawsuit began, however, so the ruling only means that Michigan didn't violate the Constitution in implementing the mandate, and that it (and other jurisdictions in the Sixth Circuit) can do it again.

The case, Resurrection School v. Hertel, tested the Michigan Department of Health and Human Service requirement that all persons five years of age and older wear a mask in indoor public settings, including while attending public and private K-12 schools. The requirement contained certain exceptions for eating and drinking, for those "engaging in a religious service," for those who have health conditions that restrict their mask wearing, and others. Resurrection sued, arguing that the mandate violated free exercise and equal protection, among other claims.

While the case was pending, the Department rescinded the mask requirement. The Sixth Circuit nevertheless ruled that the case wasn't moot under the voluntary-cessation and capable-of-repetition-but-evading-review exceptions.

On the merits, however, the court rejected the plaintiffs' claims. The court ruled that the mask requirement was a religiously neutral law of general applicability, and easily satisfied rational basis review. As to religious neutrality, the court declined to look outside the schools for a secular comparator to religious schools (like gyms or movie theaters, as some courts have done), which might've demonstrated that the Department was targeting religious schools; instead, it said that the mask requirement treated religious schools exactly as it treated secular schools--the relevant comparator here.

Identifying a comparable secular activity for religious schools other than a public or private nonreligious school is difficult. Schools educating students in grades K-5 are unique in bringing together students not yet old enough to be vaccinated against COVID-19 in an indoor setting and every day. Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.

Even under this broader conception of comparable secular activity, the [Department] orders are not so riddled with secular exceptions as to fail to be neutral and generally applicable. . . .

The court also rejected the plaintiffs' equal protection and substantive due process claims, holding that these were merely repackaged free exercise claims.

Fifth Circuit Rejects First Amendment Retaliation Claim for Union Activities

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit earlier this week rejected free-speech and free-association claims of a public employee, who was also a public-union leader, after he was terminated for performance reasons. The court also rejected the plaintiffs' class-of-one equal protection claim.

The case, United Steel v. Anderson, arose when Sergio Castilleja, a community service officer for the Bexar County Community Supervision and Corrections Department, was terminated for violating Department rules and other performance issues, including using Department equipment for union activities. But prior to his termination, Castilleja had been elected president of the Bexar County Probation Officers Association, and, in that role, oversaw a no-confidence petition against the Department chief, Jarvis Anderson. When he was fired, Castilleja's children and various unions sued, arguing that the Department terminated him for his union activities in violation of the First Amendment and that the Department treated him differently than officers in other unions in violation of equal protection.

The Fifth Circuit rejected the claims. The court ruled that the Department provided a legitimate, non-speech and non-association reason for his termination--his performance deficiencies--and that the plaintiffs failed to show that this reason was a pretext for reprisal for protected speech and association. The court also ruled that the unions' equal protection argument failed, because under Engquist v. Oregon Department of Agriculture class-of-one equal protection claims (where one person alleges unequal treatment as compared to similarly situated persons) don't apply to discretionary public-employment decisions.

Fifth Circuit Strikes Fee for Latex Clubs

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit ruled that a $5 per person fee for "latex clubs" in Texas violated free speech and due process. The ruling means that state authorities can't enforce the fee against sexually oriented clubs where dancers wear opaque latex breast coverings and shorts.

The case, Texas Entertainment Association v. Hegar, arose when Texas enacted a "sexually oriented business" fee that imposed a $5 charge per customer on businesses that serve alcohol in the presence of nude entertainment. In response, some sexually oriented businesses required dancers to wear opaque latex breast coverings and shorts. The gambit allowed these "latex clubs" to dodge the $5 fee for a good eight years, until the Texas comptroller issued a rule that excluded latex from the definition of "clothing" under the law. The rule meant that latex clubs now had to pay the fee.

The TEA, which represents sexually oriented businesses in Texas, sued, arguing that the comptroller's move violated free speech, due process, and equal protection. The Fifth Circuit agreed, except as to equal protection.

The court ruled that the comptroller's redefinition was a content-based restriction on speech (and not content-neutral), because the comptroller produced no evidence that the redefinition served any non-speech purpose (like reducing the secondary effects of latex clubs). (The court declined to shoehorn the state's initial asserted interest behind the $5 fee--reducing secondary effects--into the comptroller's decision, more than eight years later, and based on no evidence.) The court applied strict scrutiny, and ruled that the comptroller's action failed.

The court also ruled that the comptroller's action violated due process. The court said that the comptroller previously declined to impose the fee on latex clubs--indeed, that the comptroller told one club that "everything was good"--and upset the latex clubs' "settled expectation that they would not be subject to" the fee.

Finally, the court ruled that the action didn't violate equal protection. The court said that latex clubs were more like nude dancing establishments (which were already subject to the fee), and not like sports bars (which were not). Because the move did not treat similarly situated businesses differently (latex clubs aren't similar to sports bars), the court ruled that it didn't violate equal protection.

Full Seventh Circuit Keeps Challenge to State Sex Offender Registration Alive

Steven D. Schwinn, University of Illinois Chicago School of Law

The full Seventh Circuit today rebuffed certain constitutional challenges to Indiana's Sex-Offender Registration Act (SORA) as applied to pre-Act offenders required to register in another state. At the same time, however, the court remanded an equal protection claim for further consideration.

The ruling means that the plaintiffs still have a live challenge to the Act. And, given the court's remand instruction and the lower court's earlier ruling, it's likely a winning one.

The case, Hope v. Commissioner of Indiana Department of Correction, tests Indiana's SORA as applied to pre-act offenders who were required to register in another state before SORA's enactment. That matters, because the Indiana Supreme Court interpreted the Act not to require Indiana pre-Act offenders to register. (It said that requiring registration would violate the state constitution's Ex Post Facto Clause.) So Indiana's SORA requires pre-Act offenders to register if they were required to register in another state before SORA. But it doesn't require pre-Act offenders to register if they had no pending out-of-state registration requirement.

Offenders with an out-of-state requirement sued, arguing that the Act, as interpreted by the state supreme court, violated their right to travel, the federal Ex Post Facto Clause, and equal protection. The district court ruled in the plaintiffs' favor on all claims, and a panel of the Seventh Circuit affirmed on the right to travel claim. The full court reversed.

The court ruled that the scheme didn't violate the right to travel under the Fourteenth Amendment Privileges or Immunities Clause--"for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state." That's "because it does not expressly discriminate based on residency, as consistently required by the Supreme Court." Instead, the court said that while the Act "may affect newer residents disproportionately,"

[a]s a statutory matter, SORA obligates all offenders--both old and new residents--to register based on prior convictions. Indiana's Ex Post Facto Clause then relieves a subset of those who must register from that statutory obligation. Receiving the clause's benefits, though, does not depend on when an offender became an Indiana resident but on whether one is subject to an existing registration requirements. That requirement can come from Indiana, or from another state. The twist in this case is that for those offenders like the plaintiffs, convicted before Indiana's SORA covered their crimes, such a registration obligation must come from elsewhere.

(The dissent argued that this different treatment--based solely on whether a pre-Act offender has traveled to another state or not--is the model of infringing on the right to travel.)

The court next ruled that SORA didn't violate the federal Ex Post Facto Clause, because the registration requirement isn't punitive.

But the court remanded the question whether SORA violated the Equal Protection Clause under rational basis review--and all but invited the district court to rule in favor of the plaintiffs. The court wrote,

The plaintiffs may still challenge Indiana's application of SORA to them because it treats them differently than similarly situated Indiana offenders. SORA, as modified by the Indiana Supreme Court's constitutional overlay, creates two classes of pre-SORA offenders--those who must register in Indiana, and those who are free from that requirement. Indiana distinguishes between the two groups based solely on whether the pre-SORA offender had a registration obligation in another state. For example: two lifelong Indiana residents, both with pre-SORA convictions, will be treated differently if one commutes into Chicago for work--and so is subject to Illinois's reporting requirements--while the other never leaves Indiana. The distinction holds true for offenders who attend school in another state or who have lived in another state imposing registration obligations on them. In short, two similarly situated Indiana offenders may have vastly different legal obligations simply because one of them has an out-of-state registration obligation.

The court instructed the lower court to apply rational basis review to this distinction, and cautioned that it "should be undertaken with care" and "thorough[] develop[ment of] the factual record." It said that "[r]ational basis review favors the State but does not ensure an automatic win."

Fourth Circuit Says Public Charter School Not a State Actor for Dress Policy

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fourth Circuit ruled that a public charter school isn't a state actor for purposes of its dress policy, and dismissed an equal protection challenge to that policy. At the same time, the court ruled that Title IX covers the policy, and remanded the case for further consideration on that statutory ground.

The case, Peltier v. Charter Day School, tests CDS's policy that requires girls to wear skirts or skorts. CDS's stated reasons for the policy are baldly based on romantic paternalism and outdated ideas about sex-based differences; and the plaintiffs provided plenty of evidence that the policy harmed girls. Still, the court ruled that the plaintiffs couldn't assert an equal protection claim under Section 1983, because CDS isn't a state actor.

The court ruled that despite North Carolina's charter, designation, and funding of CDS as a "public" school, functional considerations made CDS a non-state-actor for the purpose of its dress policy.

Functionally, North Carolina's charter school statutory scheme disentangles the state from the day-to-day operations of CDS, and in particular CDS's promulgation of a dress code. The statutory scheme clearly reflects a "legislative policy choice" to contract with privately operated schools to provide a hands-off approach by the state, enabling pedagogical experimentation and school choice. Likewise, the fact that CDS is directly publicly funded, rather than reimbursed for tuition it charges by the state, is a formal distinction. . . . That charter schools cannot charge tuition in North Carolina merely reflects the legislative designation of the schools as public, and thus open equally, in theory, to all. It does not functionally change the relationship between CDS and the state.

The court went on to say that its ruling is limited to CDS's dress policy, suggesting that CDS may be a state actor for other purposes, and that its ruling doesn't license CDS to discriminate (because there are numerous other anti-discrimination requirements that apply to it). Moreover, it said that CDS's justification wouldn't have satisfied equal protection standards if CDS were a state actor.

The court also ruled that Title IX applied to the dress policy, notwithstanding a 1982 Department of Education move to revoke a previous regulation that applied Title IX to "any rules of appearance." The court applied Chevron and concluded that nothing in Title IX prevented its application to dress policies.

Judge Kennan dissented on the state-actor portion of the ruling. "I therefore part company with my friends in the majority and would hold that actions of [CDS], a public school created under North Carolina law and funded almost entirely by governmental sources, are actions of the state for purposes of Section 1983. Moreover, I would hold that CDS' enforcement of the skirts requirement, with its many attendant harms to girls, denies these girls at this public school their constitutional guarantee of Equal Protection under the law."

Second Circuit Tosses Suit Challenging Connecticut Magnet School Racial Quota

Steven D. Schwinn, University of Illinois School of Law

The Second Circuit ruled yesterday that a nonprofit lacked standing to challenge a Connecticut Department of Education rule that interdistrict magnet schools enroll at least 25 percent non-Black and non-Latinx students. The ruling leaves the rule on the books.

The case, CTPU v. Russell-Tucker, arose when the Commissioner of the Connecticut State Department of Education issued a memo that required all interdistrict magnet schools to enroll at least 25 percent non-Black and non-Latinx students. The Connecticut Parents Union, a non-profit founded "to protect . . . children's educational rights thus ensuring that neither race, zip-code, nor socio-economic status is a predictor of a child's success," sued, arguing that the memo violated equal protection.

The defendants moved to dismiss, arguing that CTPU lacked standing. The court agreed.

The court held that CTPU failed to allege a sufficient harm to its operations. (CTPU did not allege standing on behalf of its members.) The court acknowledged that an organization can establish standing when it "diverts its resources away from its [other] current activities," or otherwise incurs "some perceptible opportunity cost." But it held that CTPU failed to meet that standard here. The court said that CTPU

fail[ed] to identify any restrictions on its ability to perform the core activities--such as meetings, lectures, and general organizing--by which it pursued its mission prior to the [memo]. To the extent CTPU claims that [the memo] triggered an increased demand for parent counseling, CTPU fails to sufficiently plead that any resulting costs were material. Further, even construing the record in CT{U's favor, as we must, it is clear that CTPU incurred costs because it decided to initiate a campaign against [the memo] to advance its own "abstract social interests," thus any costs CPTU incurred from this campaign were not involuntary.

The ruling obviously doesn't prevent another person or organization who has been injured by the memo from suing. But since CTPU's lawsuit, the schools revised the memo to remove any penalties for noncompliance, likely raising other standing challenges for potential plaintiffs.

First Circuit Declines to Halt Geography-Based School Admissions Program

Steven D. Schwinn, University of Illinois Chicago School of Law

The First Circuit last week declined to enjoin Boston Public School's geography- and income-based admissions program for its elite magnet schools. The ruling says that plaintiffs are unlikely to succeed on their equal protection challenge to the admissions program.

The case, Boston Parent Coalition for Academic Excellence v. School Committee of the City of Boston, challenges the Boston Public School's admission program to Boston Latin School, Boston Latin Academy, and John D. O'Bryant School of Mathematics and Science for the 2021-22 school year. With more applicants than the schools could admit, the system turned to a two-phase admissions process. In the first phase, all students are ranked city-wide by GPA; the highest-ranked students are assigned their first choice until 20 percent of each school's seats are full. In the second phase, the 80 percent remaining seats are distributed among the city's various zip codes by population. Students are ranked by GPA within their zip codes and compete for admission with other students within their zip codes. The program admits top-ranked students in the zip code with the lowest household median income first, then moves to the zip code with the next lowest income, and so on, through the zip codes by incomes, lowest to highest.

Based on projections, Black and Latinx students would receive fewer seats than their proportional representation in the school-age population at large. White and Asian students, by contrast, would receive proportionally more seats.

Still, White and Asian students sued, arguing that they'd receive disproportionally even more seats without the zip-code-income-based program. They claimed that the program violated equal protection, because it was based on purposeful racial discrimination.

The First Circuit rejected the claim. It said that the program was racially neutral on its face, and that the plaintiffs failed to make out an Arlington Heights case of unconstitutional discriminatory impact. The court noted that the numbers alone didn't reveal a disparate impact on White or Asian students, and that the plaintiffs failed sufficiently to point to other circumstantial evidence of racial intent.

In particular, the court rejected the plaintiffs' claim that the program was impermissibly based in part on the Board's desire to diversify the schools by socioeconomic status, race, and geography: "the mere invocation of racial diversity as a goal is insufficient to subject [a facially neutral school selection plan] to strict scrutiny."

It also rejected the plaintiff's claim that some of the people involved in developing the policy sought to achieve racial balancing. "The fact that public school officials are well aware that race-neutral selection criteria--such as zip code and family income--are correlated with race and that their application would likely promote diversity does not automatically require strict scrutiny of a school system's decision to apply those neutral criteria."

The ruling leaves the program in place while the case proceeds. As a practical matter, the ruling almost certainly (absent something extraordinary) allows the Boston schools to use the program for the 2021-22 school year.

Obergefell as Precedent: First Monday in October

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg's death in September.

In today's Order List of the Term, the Court denied certiorari in Davis v. Ermold to the Sixth Circuit's decision that court clerk Kim Davis did not have immunity from a damages suit. (Recall that in 2017 the Sixth Circuit allowed the damages suit to proceed). Kim Davis achieved notoriety as a clerk who refused to issue a marriage license to a same-sex couple despite the United States Supreme Court's ruling in Obergefell v. Hodges.

Two Justices on the Court who dissented in Obergefell — Thomas joined by Alito — used today's denial of certiorari to issue a "statement" (it is not a dissent as the issue is not "cleanly presented" in this case) to cast doubt on the continued validity of Obergefell:

this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

Two Justices who joined the slim 5-4 majority in Obergefell  — Ginsburg and Kennedy — are no longer on the Court.  This statement sends a strong message to courts and advocates that the the Court would contemplate overruling or severely limiting Obergefell should the issue be more "cleanly presented."