Constitutional Law Prof Blog

Ninth Circuit Says Police Chief's Private Texts Aren't Protected Speech

The Ninth Circuit today rejected a First Amendment retaliation claim by a police chief who was forced to resign after sending private texts with a forwarded racist image. The court examined the language, form, and context of the texts and concluded that they did not constitute a matter of public concern under Pickering v. Board of Education.

The case, Adams v. County of Sacramento, arose when Kate Adams, who worked in the Sacramento County Sheriff's Office, sent private texts to colleagues that included forwarded racist pics. (Adams's texts seem to suggest that she disapproved of the forwarded pics.) Years later--after Adams was appointed as City of Rancho Cordova Police Chief and after the texts came out in the course of an EEO investigation involving one of the recipients--a county attorney told her that she'd have to resign or face an investigation that would fuel a "media circus" over the texts. Adams resigned, then sued, arguing that her forced resignation violated the First Amendment, among other things.

The Ninth Circuit ruled that Adams's speech wasn't protected public-employee speech under Pickering, and that she therefore had no First Amendment claim against her forced resignation. The court looked at the language, form, and context of the texts to concluded that they did not constitute a matter of public concern.

Judge Callahan dissented, arguing that this was an unusual case in that "Adams's speech occurred outside of work, was totally unrelated to her job, and should not have had any impact on her employment," and that "Adams should have the chance to hold the County accountable for its harsh reaction to her speech . . . ."

Second Circuit Says No Pretext Limit on Government Taking Power

The Second Circuit rejected a claim by property owners that a local government violated the Takings Clause by taking private property for concededly public, but pretextual, reasons. The ruling means that the Town of Southold, New York, can take private property to build a park, even if the Town's true motive was to prevent the owners from building a hardware store.

The case, Brinkmann v. Town of Southold, arose when the Brinkmanns bought land in Southold to expand their chain of hardware stores. The Town sought several times to thwart the effort, and ultimately acquired the land to build a public park. The Brinkmanns sued, arguing that the Town's stated purpose for acquiring the land was pretextual, and that the Town really only sought their property to prevent them from building a new hardware store. The Brinkmanns argued that this violated the Takings Clause.

The Second Circuit rejected the argument. The court ruled that the Takings Clause doesn't contain a pretext limit on the government's power of eminent domain. The court explained:

A "pretext" limitation that invalidates a taking for a public park would undo this "longstanding policy of deference to legislative judgments in this field," by inviting courts "in all cases to give close scrutiny to the mechanics of a taking rationally related to a classic public use as a means to gauge the purity of the motivates of the various government officials who approved it." Such motives are by nature fragmented--and rarely, if ever, pure.

Judge Menashi dissented, arguing that "the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause. A taking of property must be 'for public use,' or at least for 'a public purpose'--and thwarting the rightful owner's lawful use of his property is not a public purpose."

Colorado Voters Sue To Keep Trump Off Ballot

Six Colorado voters filed suit in state court to keep Trump off the ballot, arguing that he's disqualified under Section 3 of the Fourteenth Amendment. The lengthy and detailed complaint preemptively addresses the several arguments against Section 3's application to Trump and state courts' authority to enforce Section 3. It asks the court to enjoin the state secretary of state from taking any action that would give Trump access to the ballot.

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.

Sixth Circuit Applies Unconstitutional Conditions Takings Test to Nashville's Sidewalk Ordinance

The Sixth Circuit ruled that Nashville's requirement that landowners who seek building permits grant an easement and construct a sidewalk is subject to the unconstitutional conditions test, and not the regulatory takings test, under the Takings Clause.

The ruling, along with a key concession by Nashville, means that Nashville's sidewalk ordinance constitutes a taking, and that Nashville must provide just compensation (to be determined on remand). (That doesn't mean that every sidewalk ordinance, or the like, necessarily constitutes a taking, however, even under the unconstitutional conditions test. That's because Nashville didn't argue this point. More on that below.)

The ruling weighs in on a hot issue in the state courts around similar conditioned permit requirements: whether those requirements are subject to the (more rigorous) unconstitutional conditions test, or the (less rigorous) ordinary regulatory takings test. The Sixth Circuit ruled that Nashville's sidewalk ordinance is subject to the unconstitutional conditions test.

The case, Knight v. Metropolitan Government of Nashville, arose when, in order to create more sidewalks, Nashville required property owners who seek a building permit to grant an easement on their property and construct a sidewalk (or pay an "in-lieu" fee that the city would use to build sidewalks elsewhere). Property owners sued, arguing that the requirement constituted an uncompensated taking. In particular, they said that the sidewalk requirement constituted an unconstitutional condition on a building permit.

In order to assess this kind of case and determine whether a condition constitutes a taking, courts use a three-part approach. First, they ask if the condition would qualify as a taking if the government required it directly. If not, there's no taking. But if so, next, the government must demonstrate a "nexus" between the condition and the development. (The condition must be related in kind to the development.) Finally, the government must establish a "rough proportionality" between the condition and the development, so that the condition's burdens on the property owner approximate the development's burdens on the community. (The condition must be related in magnitude to development's costs to the community.) This three-part test comes from Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. Johns River Water Management District. If the government fails to show a "nexus" or "rough proportionality," the condition is a taking (assuming it's for public use), and the government must pay just compensation.

Nashville countered that the sidewalk requirement was an ordinary regulation, subject to the Court's regulatory takings test. Nashville claimed that because the sidewalk ordinance was "legislative" (that is, imposed on all property owners by the city council), and not "adjudicative" (imposed by zoning officials on individual property owners on a case-by-case basis), the ordinance looked more like an ordinary regulation, and not like an exaction in exchange for a benefit.

In order to assess this kind of case and determine whether a regulation constitutes a taking, courts look to the nature of the regulatory scheme and its effects on the property owner, among other considerations, and, using a kind of totality-of-the-circumstances approach, determine whether the regulatory scheme goes too far. Penn Central Transportation Co. v. New York City. If so, the regulatory scheme is a taking, and the government must pay just compensation.

The court sided with the property owners. It said that nothing in the Taking Clause's history or case-law supported Nashville's claimed distinction between a "legislative" condition and an "adjudicative" one, and that Nashville's sidewalk ordinance looked more like a typical exaction in exchange for a government benefit.

The court then noted that Nashville didn't even bother to argue that the sidewalk ordinance satisfied the "nexus" and "rough proportionality" test. As a result, the court assumed that the ordinance constituted a taking and remanded the case for a determination of an appropriate remedy.

But note that the court's ruling turned on Nashville's concession. This doesn't mean that every sidewalk ordinance (or the like) constitutes a taking, even under the Nollan/Dolan test. The court itself wrote that the "answer is not obvious," noting that dicta in Dolan said "that 'dedications' for 'sidewalks' are often 'reasonable' conditions on permits."

South Carolina Supremes Strike Six-Week Abortion Ban Under State Constitution

The South Carolina Supreme Court ruled yesterday that the state's ban on abortion after six weeks of pregnancy violated the state constitution's right to privacy.

In doing so, the court broke with the historical approach that the Supreme Court used last summer in Dobbs v. Jackson Women's Health Organization, when it overturned Roe v. Wade. The Court in Dobbs used only history before and leading up to the adoption of the Fourteenth Amendment in concluding that the Fourteenth Amendment didn't protect a right to abortion, whereas the South Carolina Supreme Court also considered the place of women in political society at the time of the adoption of the provision at issue and events that have "transpired since the amendment was adopted."

The court based the ruling on Article I, Section 10, of the South Carolina Constitution, which says: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated." The provision sounds like the Fourth Amendment, with the addition of a specific right to privacy. But the court rejected a reading that would've limited the privacy part to government searches and seizures; it said that the privacy part wouldn't be doing any work if it were so limited, and that it therefore must grant a more general right to privacy.

The court also rejected a reading of the provision that depended on what the provision's framers thought at the time of adoption in the mid-1960s, given that women weren't included in the framing committee and given that the state "had neither permitted women to serve on juries in this state nor ratified the Nineteenth Amendment."

The court then wrote that "[w]e cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since the amendment was adopted." It said the Court specifically "declined to do so in the context of 'separate but equal' education in Brown v. Board of Education, then quoted this passage:

[W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

The approach is a notable break from the Supreme Court's historical approach in Dobbs, when it considered history only before and leading up to the Fourteenth Amendment, and certainly not "everything that has transpired since the amendment was adopted." The South Carolina Supreme Court put a fine point on this break by noting that the Court itself didn't limit its historical assessment to pre-Fourteenth Amendment history in other unenumerated-fundamental-rights cases like Loving, Griswold, Lawrence, and Obergefell.

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."

Court to Hear Arguments in Mississippi Abortion Ban Case

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

The Supreme Court will hear oral arguments today in Dobbs v. Jackson Women's Health Organization, the case testing Mississippi's ban on abortion after 15 weeks of pregnancy . . . and Roe v. Wade itself. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

In 2018, Mississippi enacted the Gestational Age Act. The Act prohibits doctors from performing an abortion on a woman who is more than 15 weeks pregnant. (In determining the length of a pregnancy, the clock starts running at a woman’s last menstrual period, or “LMP.” As a result, the parties sometimes say that the Act bans abortions after “15 weeks LMP.”)

The Act contains two exceptions. The first one allows doctors to perform an abortion on a woman more than 15 weeks pregnant in the case of a “medical emergency.” The Act defines a “medical emergency” as a situation where, because of a woman’s physical condition or illness, a doctor must perform an abortion in order to save the woman’s life or to prevent “a serious risk of substantial and irreversible impairment of a major bodily function.”

The second exception allows doctors to perform an abortion on a woman more than 15 weeks pregnant in the case of a “severe fetal abnormality.” The Act defines a “severe fetal abnormality” as “a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of live-saving medical treatment, is incompatible with life outside the womb.”

A doctor who “intentionally or knowingly” violates the Act is subject to license suspension or revocation.

On the same day that the Act took effect, Jackson Women’s Health Organization (JWHO) and one of its doctors sued. JWHO is the only abortion provider in Mississippi; it performs abortions up to the 16th week of a woman’s pregnancy. JWHO argued that the Act violated the fundamental right to abortion under Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and sought an injunction against its enforcement.

The district court granted a permanent injunction, and the United States Court of Appeals for the Fifth Circuit affirmed. This appeal followed.

CASE ANALYSIS

For almost 50 years, since Roe v. Wade, the Supreme Court has recognized that a woman has a fundamental right to an abortion. For almost 30 years, since Casey, the Court has said that a state can regulate abortion before a fetus is viable outside the womb only insofar as the state regulation does not create an “undue burden” on a woman’s right to an abortion. After viability, a state may ban abortion entirely, but the state still has to provide an exception for the life or health of the woman.

Mississippi’s ban on abortion after 15 weeks of pregnancy runs headlong into this framework, or at least tests its limits. That’s because fetal viability occurs around 22 to 24 weeks of pregnancy, and an outright ban before that time (at 15 weeks of pregnancy) plainly creates an “undue burden,” at least for some women.

Mississippi takes on this framework directly and argues that the Constitution does not protect a woman’s right to abortion. It claims that Roe and Casey “are grievously wrong, unworkable, damaging, and outmoded,” and that the Court should overrule them. The state says that because the Constitution does not protect a right to abortion, the Court should scrutinize its Act under mere “rational basis review,” the low-level, deferential standard that the Court uses to analyze state regulations of economic matters and interests that are not fundamental. Under this standard, Mississippi asserts that the Court should uphold its ban, because the ban is rationally related to the state’s interests in “protecting unborn life, women’s health, and the medical profession’s integrity.”

But even if the Court declines to overturn Roe and Casey and continues to recognize the fundamental right to abortion, the state argues that the Court should reject Casey’s viability benchmark. The state says that the “viability rule has no constitutional basis, it harms state interests, and it produces other severe negative consequences.”

Mississippi offers two alternatives to the viability line: the Court could rule that the Act survives any level of scrutiny (including the most rigid “strict scrutiny”) and put off a determination of what specific level of review applies; or the Court could “clarify the undue-burden standard” and hold that the Act does not create an undue burden. Under this latter option, Mississippi asserts that the Court could interpret the undue-burden standard to mean that a state could prohibit pre-viability abortions if the state restriction does not erect a substantial obstacle to “a significant number of women” seeking abortions. Under this approach to the undue-burden standard, Mississippi contends that its Act does not create an undue burden, because JWHO only performs abortions up to sixteen weeks of pregnancy, and “so the Act reduces by only one week the time in which abortions are available in Mississippi.”

JWHO counters first that the Court should not overturn Roe and Casey. JWHO says that the Court in Casey already considered all the arguments that Mississippi makes for overturning Roe—and rejected them. As a result, it claims that “Casey is precedent on top of precedent,” and that the case for retaining Roe and Casey has only grown stronger in the nearly 30 years since Casey, and the Court’s repeated reaffirmations of the fundamental right to pre-viability abortion.

Moreover, JWHO asserts that there is no reason to revisit Roe and Casey or the viability benchmark. JWHO says that a woman today still has “the personal autonomy and bodily integrity interests that underpin” the fundamental right to abortion, and that the viability line protects those interests “in a principled and workable way.” JWHO also contends that nothing has changed in the fundamental liberty interest that Roe and Casey protect. It says that if anything, “the years since Casey have only reinforced the importance of access to legal abortion for gender equality.” For all these reasons, JWHO contends that there is no reason to revisit Roe and Casey or the viability benchmark.

JWHO argues that Mississippi’s proffered alternatives to the viability benchmark are unworkable, and only “confirm that the Court was right in Casey to retain the viability line.” It says that lower courts could not administer any standard other than the “undue burden” standard “against the inevitable cascade of state abortion bans that would follow if the Court” changes the standard. And it claims that the state’s version of the “undue burden” standard would, as a practical matter, eviscerate Roe and Casey.

(The government weighs in to support JWHO and makes substantially similar arguments.)

SIGNIFICANCE

Dobbs is almost certainly the most important case this Term, and probably the most important case in the last several Terms, or even decades. That’s because it puts front and center a nearly 50-year-old precedent that is a principal focal point in constitutional law and politics. Political conservatives have fought for decades to gain a majority on the Court that is willing to overturn Roe v. Wade, while political progressives have fought to preserve it. At the same time, Roe v. Wade has served as an organizing principle in national, state, and even local politics for both the right and the left.

That said, Roe really is a super-precedent. The Court has reaffirmed it time and again, and flatly rejected strong calls to overturn it, including in Casey, where the Court laboriously considered, and rejected, all the arguments against it. In fact, the Court reaffirmed the Casey framework twice in the last five years, first in Whole Woman’s Health v. Hellerstadt, 136 S. Ct. 2292 (2016), and just last year in June Medical v. Russo. 140 S. Ct. 2103 (2020). Those cases were close, to be sure, but the rulings still stand.

But with Justice Amy Coney Barrett’s replacement of Justice Ruth Bader Ginsburg (and Justice Brett Kavanaugh’s earlier replacement of Justice Anthony Kennedy), the Court today has six justices who would almost certainly rule that the Constitution does not protect a fundamental right to abortion. Still, that doesn’t ensure that the Court will rule that the Constitution does not protect a fundamental right to abortion. That’s because two or more of those six may vote to uphold Roe and Casey under principles of stare decisis, even if they disagree with Roe and Casey on the merits. (Chief Justice John Roberts already telegraphed some support for stare decisis in this context when he famously voted to overturn Louisiana’s abortion restrictions in June Medical based on the Court’s ruling in a similar case in Hellerstadt—even though he dissented in Hellerstadt. It’s not obvious that his approach to stare decisis in June Medical will carry over to Roe and Casey, however.)

If so, Mississippi is ready with its two alternatives. These would allow the Court to validate the fundamental right to abortion but abandon the undue-burden test, the viability line, or both. The Court could nominally affirm Roe and maybe even Casey, while in reality taking large chunks out of them. Given the Court’s incremental approach to overturning other long-standing precedents, this is a real possibility.

One final note. The Court already this Term heard oral arguments in two other critical abortion cases, U.S. v. Texas and Whole Woman’s Health v. Jackson, both arising out of Texas’s unprecedented restriction on abortion. Those cases are obviously related to this one insofar as they address a state’s restriction on the fundamental right to abortion. But the core issue in those cases is procedural, not (necessarily) substantive—whether the plaintiffs can sue to stop Texas from implementing the law.

High Court Leaves Texas Abortion Ban in Place, but Expedites Appeal

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

The Supreme Court today declined to halt the Texas abortion ban, S.B. 8, but expedited appeals by abortion providers and the Biden administration in two separate orders today.

Today's actions by the Court mean that Texas's law stays in place while the appeals proceed at the Supreme Court. The Court set a super-fast briefing schedule and slated oral argument in both cases for November 1.

In the Biden administration appeal, the Court limited the case to whether the United States can sue Texas, state court judges, state court clerks, other state officials, and private parties to prohibit S.B. 8 from being enforced. Justice Sotomayor dissented, arguing that the Court's failure to halt the law pending appeal effectively means that women can't get abortions in Texas. (We posted on the Biden administration appeal most recently here.)

In the doctors' appeal, the Court will decide both whether the doctors can sue state judges, state officials, and private individuals, and, if so, whether S.B. 8 is unconstitutional.

(Remember that the Court will hear yet another case testing a state's abortion ban--Mississippi's ban on abortions after 15 weeks of pregnancy. That case, Dobbs v. Jackson Women's Health Organization, puts Roe and Casey front and center. Still, there may be room in the case for the Court to uphold the law without flat-out overruling Roe. Oral argument in Dobbs is set for December 1.)

Federal Government Asks Supreme Court to Halt Texas's Antiabortion Law

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

The federal government yesterday asked the Supreme Court to reinstate a lower court injunction against Texas's S.B. 8, the state law that effectively shut down nearly all abortions in the state. The move came after the Fifth Circuit stayed the district court's injunction pending appeal.

This'll be the second trip that S.B. 8 makes to the high court. Recall that the Court in an earlier pre-enforcement lawsuit allowed S.B. 8 to go into effect. The Court ruled that the plaintiffs in that earlier case sued the wrong defendants, state judicial officers and private individuals who said that they'd enforce S.B. 8.

The federal government's suit is tailored to navigate that procedural problem in the earlier case and put the issue of S.B. 8's constitutionality squarely before the Court.

In order to do this, the federal government sued Texas itself (not its officers or judges, and no private individuals). The government argues that it can do this in order "to vindicate two distinct sovereign interests":

First, to the extent S.B. 8 interferes with the federal government's own activities, it is preempted and violates the doctrine of intergovernmental immunity. Second, S.B. 8 is an affront to the United States' sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this Court remain available to challenge unconstitutional state laws. The United States has authority to seek equitable relief to vindicate both interests.

(That first interest goes to government obligations to assist certain individuals, like those incarcerated in federal prison, in getting an abortion. If the government honors that obligation for incarcerated women in Texas, it can be subject to civil suit under S.B. 8 in Texas courts. According to the government, this means that S.B. 8 is preempted by those federal obligations, and that S.B. 8, in allowing suits against the United States, violates the government's immunity.)

As a result, the government argues that its suit avoids the wrong-defendant problem in the earlier suit. After all, Texas itself created the mechanism that outsourced enforcement of S.B. 8 to private parties, and so Texas itself must be accountable in court.

The government asked the Court to vacate the Fifth Circuit's stay, or to grant cert. before judgment and set the case for argument this Term.

Fifth Circuit Tosses Case Challenging Removal of Confederate Monument

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

The Fifth Circuit dismissed a case challenging San Antonio's removal of a monument of a confederate soldier for lack of standing. The ruling ends the challenge. (The statue is already gone.)

The case, Albert Sidney Johnston v. San Antonio, arose when the city removed a confederate monument in a public park. ASJ sued, arguing that the removal violated the First and Fourteenth Amendments.

The court held that ASJ lacked standing. It recognized that ASJ is the successor organization to the Barnard E. Bee chapter of the United Daughters of the Confederacy, which erected the monument in the first place. But it said that ASJ had no property interest in the public park (because "the land was generally inaliable and unassignable") and no right to use the land; and therefore the organization couldn't allege a harm under the First or Fourteenth Amendments.

Sixth Circuit Upholds Tenured Prof's Termination, Rebuffs Due Process, First Amendment Claims

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

The Sixth Circuit ruled that the University of Louisville did not violate procedural due process or free speech when it disciplined and later terminated a tenured professor and department chair for signing an unauthorized lease on behalf of the department and meeting with private equity firms interested in buying or financing the department.

Dr. Henry J. Kaplan, tenured prof and Chair of UofL's Department of Ophthalmology and Visual Sciences, sued the school after it fired him for signing the lease and meeting with potential investors. Kaplan argued that his termination violated due process, his reputation and career interests, and academic freedom. The court rejected each claim.

As to due process, the court ruled that Kaplan didn't have a property interest in his administrative position (chair of the department), so due process didn't apply. It ruled that the school's process for terminating his tenured professorship satisfied due process, because the school notified Kaplan of the issues prior to any disciplinary action; it terminated him pursuant to school rules that allow the school to terminate a faculty member for "[n]eglect of or refusal to perform one's duty" that "substantially impairs [their] effectiveness as a faculty member"; it conducted a post-termination hearing (a "Cadillac plan of due process"); and an alternative pre-deprivation hearing wouldn't have been any more protective of Kaplan's property right in his faculty position.

The court held that Kaplan forfeited any reputational-interest claim because he didn't request a name-clearing hearing. It ruled that the school didn't violate his career interest, because it didn't prevent Kaplan from seeking future employment in his chosen career.

Finally, the court ruled that Kaplan misfired on his academic freedom claim. "Simply put, UofL suspended Kaplan because of his attempts to circumvent UofL's cost-control measures and not because of any ideas he advocated or research he conducted."

Full Sixth Circuit Rejects Facial Challenge to Ohio's Down Syndrome Abortion Restriction

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

The full Sixth Circuit rejected a facial challenge to Ohio's law that bans doctors from performing an abortion with the knowledge that the woman's reason for abortion is that the fetus has Down syndrome. The ruling means that the law stays on the books, but may be subject to as-applied challenges when it goes into effect.

The case, Preterm-Cleveland v. McCloud, tested Ohio's law that prohibits doctors from performing abortions when the doctor knows that the woman seeks an abortion because the fetus has Down syndrome. The court said that the law "advances the State's legitimate interests" in

protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicated fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions.

The court also said that the law doesn't have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion." Here, the court emphasized that the law only prohibits a doctor from performing an abortion when the doctors knows that the woman seeks an abortion because the fetus has Down syndrome. The court asked, and answered:

Would any woman who is otherwise set on having an abortion choose not to have that abortion (and instead have the baby) solely because she could not have the abortion performed by the specific doctor to whom she desires to reveal (or has revealed) that her reason for the abortion is that she does not want a child with Down syndrome? Taking the next step, would a significant number of such women do so? We think the answer to both questions is clearly no, but more importantly, the plaintiffs have certainly made no such showing.

As to any accidental reveal, the court said that a woman would only have to go to a different doctor--one who didn't know of her purpose.

The court also declined to halt the law based on its lack of exception for the life or health of the woman. It said that the plaintiffs had to raise this claim in an as-applied challenge, not a facial one.

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."

Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon

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

In a Temporary Restraining  Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.

Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986).  Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:

The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.

The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."

The TRO lasts for 14 days; the litigation will undoubtedly last much longer.

 

 

SCOTUS Broadens Ministerial Exemption from Anti-Discrimination Laws

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

In its opinion in Our Lady of Guadalupe School v. Morrissey-Berru, consolidated with St. James School v. Biel, the Court extended the application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, to the teachers at schools run by religious organizations in the cases, and seemingly to all teachers employed by religiously-affiliated schools. 

Writing for the Court, Alito's opinion — joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh — held that although the teachers in these cases were not actually "ministers" by title and did not have as much as religious training as the teacher in Hosanna-Tabor, they are encompassed in the same exception from enforcement of anti-discrimination laws.  The Court stated that the First Amendment protects a religious institution's independence on matters of "faith and doctrine" without interference from secular authorities, including selection of its "ministers." But who should qualify as a "minister" subject to this exemption? Recall that the factors of Hosanna-Tabor figured in the oral argument (and recall also that they figured in the Ninth Circuit's opinions). But here, the Court stated that while there may be factors,  "What matters, at bottom, is what an employee does," rather than what the employee is titled. Moreover, the "religious institution's explanation of the role of such employees in the life of the religion" is important. Indeed, the religious institution's "explanation" seems determinative. The Court rejected a "rigid formula" for determining whether an employee is within the ministerial exception, concluding instead that:

When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.

The brief concurring opinion by Thomas, joined by Gorsuch, argues that the Court should go further and essentially make the implicit more explicit: the Court should decline to ever weigh in "on the theological question of which positions qualify as 'ministerial.' "

Sotomayor dissenting opinion, joined by Ginsburg, begins:

Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the majority shields those employers from disability and age-discrimination claims. In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school- teachers of their legal protections, I respectfully dissent.

For the dissent, the Court's conclusion has "grave consequences," noting that it is estimated that over 100,000 secular teachers employed by religiously-affiliated schools are now without employment protections. Further, it contrasts Esponiza v. Montana Dept of Revenue, decided this Term, in which the Court "lamented a perceived 'discrimination against religion,'" but here "it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs." The dissent concludes with a hope that the Court will be "deft" enough to "cabin the consequences" of this ministerial exception, but given the current composition of the Court, that hope seems a narrow one.

SCOTUS Holds Free Exercise Clause Bars Application of State's No-Aid to Religious Institutions Clause in State Constitution

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

In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded to religious schools so that the Free Exercise Clause was not violated.

Recall that the Montana Supreme Court held that the tax credit program's application to religious schools was unconstitutional under its state constitution, Art. X §6 , which prohibits aid to sectarian schools. This type of no-aid provision is often referred to as (or similar to) a Blaine Amendment and frequently appears in state constitutions. 

In a closely-divided decision, the Court decided that the Montana Supreme Court's decision that the tax credit program could not be extended to religious schools should be subject to struct scrutiny under the First Amendment's Free Exercise Clause and did not survive. (The Court therefore stated it need not reach the equal protection clause claims). The Court essentially found that this case was more like Trinity Lutheran Church of Columbia v. Comer (2017) (involving playground resurfacing) and less like Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology. The Court distinguishes Locke v. Davey as pertaining to what Davey proposed "to do" (become a minister) and invoking a "historic and substantial” state interest in not funding the training of clergy. Instead, the Court opined that like Trinity Lutheran, Esponiza "turns expressly on religious status and not religious use."

The Court's opinion, by Chief Justice Roberts and joined by Thomas, Alito, Gorsuch, and Kavanaugh, is relatively compact at 22 pages.  In addition to taking time to distinguish Locke v. Davey, the opinion devotes some discussion to federalism, invoking the Supremacy Clause and Marbury v. Madison in its final section. But the opinion also engages with the dissenting Justices' positions in its text and its footnotes. Along with the concurring opinions, the overall impression of Espinoza is a fragmented Court, despite the carefully crafted majority opinion.

The concurring opinion of Thomas — joined by Gorsuch — reiterates Thomas's view that the Establishment Clause should not apply to the states; the original meaning of the clause was to prevent the federal establishment of religion while allowing states to establish their own religions. While this concurring opinion criticizes the Court's Establishment Clause opinions, it does not confront why a state constitution would not be free to take an anti-establishment position.

Gorsuch also wrote separately, seemingly to emphasize that the record contained references to religious use (exercise) and not simply religious status. Gorsuch did not discuss the federalism issues he stressed in his opinion released yesterday in June Medical Services.

Alito's thirteen page concurring opinion is an exegesis on the origins of the Montana constitutional provision as biased. Alito interestingly invokes his dissenting opinion in Ramos v. Louisiana decided earlier this Term in which he argued that the original motivation of a state law should have no bearing on its present constitutionality: "But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here." 
(Noteworthy perhaps is that Roberts joined Alito's dissenting opinion in Ramos and Roberts's opinion in Esponiza does spend about 3 pages discussing the Blaine amendments' problematical history, but apparently this was insufficient for Alito).

Ginsburg's dissenting opinion, joined by Kagan, pointed to an issue regarding the applicability of the Court's opinion:

By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional.  Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no- aid provision divorced from its application to a specific government benefit.

Breyer, joined in part by Kagan, essentially argued that the majority gave short-shrift to Locke v. Davey and its "play-in-the-joints" concept authored by Rehnquist as expressing the relationship between the Establishment and Free Exercise Clause of the First Amendment. Breyer's opinion is almost as long as the majority opinion, and the majority takes several opportunities to express its disagreement with Breyer, including in a two paragraph discussion, his implicit departure from precedent (e.g., "building on his solo opinion in Trinity Lutheran").

Sotomayor's dissent, also criticized by the majority in text, argues that the Court is "wrong to decide the case at all" and furthermore decides it wrongly.  The Court's reframing incorrectly addressed (or seemingly addressed?) whether the longstanding state constitutional provision was constitutional. Thus, she argues, the Court has essentially issued an advisory opinion.  On the merits, she contends, "the Court’s answer to its hypothetical question is incorrect." She concludes that the majority's ruling is "perverse" because while the Court once held that "the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs,” it now departs from that balanced view.

The Court's opinion is much more divided than it seems at first blush. And the future of state constitutional provisions that prohibit taxpayer money from being used to support religious institutions remains in doubt.

 

SCOTUS Holds Louisiana Abortion Restrictions Unconstitutional

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

In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).

Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).

Breyer's plurality opinion  concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice.  Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.

Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.

The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."

Florida District Judge Issues Injunction on Florida Statute Requiring Payment of Fines and Fees for Re-enfranchisement

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

The 125 page opinion in Jones v. DeSantis by United States District Judge Robert Hinkle results in an detailed permanent injunction outlining how Florida must comply with the constitutional and statutory requirements required to implement its statute requiring the payment of fees and fines before persons convicted of felonies be re-enfranchised.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole." 

Recall Judge Hinkle previously issued a preliminary injunction regarding indigent persons, finding that the statute as to the named plaintiffs violated equal protection.

Recall also that the Eleventh Circuit upheld the preliminary injunction, finding that to the "extent a felon can pay" the legal financial obligations (LFOs), they must, but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

Now, Judge Hinkle has heard evidence in the five consolidated cases and issued a detailed injunction.

As to the equal protection claim of persons who are "genuinely unable to pay their LFOs,"  Judge Hinkle found the Eleventh Circuit decision upholding the preliminary injunction was determinative. But the determination of "genuinely unable to pay" had its own constitutional issues:

The State has shown a staggering inability to administer the pay-to- vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.

The state, it seemed, could not determine the original obligation for individuals, and it could not determine the amount that individuals had paid - - - changing its accounting from an "actual-balance method" to a "every-dollar method." The opinion does an admirable job of explaining the methods and providing examples - - - and it seems clear that it is incoherent. Further, the department of elections charged with administering the system did not have a system or the resources it.

On equal protection on the basis of race or gender, Judge Hinkle rejected both claims "on balance," but did provide serious consideration.

On the Twenty-fourth Amendment, the court stated that while the Florida statute was not a poll tax, the fees imposed on defendants as payment to run the criminal justice system were "any other tax" within the Amendment.

On procedural due process, the problems with the state system and the "request an advisory opinion" method provided to individuals to determine the amounts due merited analysis, as well as a large portion of the mandated injunction (below).

While the States may certainly chose to appeal, Florida would not seem to have a very good chance returning to the Eleventh Circuit.

Continue reading

Sixth Circuit En Banc to Hear Right to Literacy Case

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

The Sixth Circuit has granted en banc review requested by a member of the court (rather than the parties) in Gary B. v. Whitmer. The panel's "previous decision and judgment of this court are vacated, the mandates are stayed, and these cases are restored to the docket as pending appeals."

This is not unanticipated. Recall that a divided panel held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment.  Our extensive analysis of the panel opinion is here.