Constitutional Law Prof Blog

Daily Read: Reconsidering State Action and Reconstruction

Political Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here. 

Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.

It's Brandwein's focus on the state action doctrine that will most interest conlawprofs.   Here is Ewald's ultimate assessment:

The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.

A good review can tell us whether or not the book is worth our time.  Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.

RR

Labor Day Scholarship Pick: "Labor and Racial Solidarity"

In their draft "So Closely Intertwined: Labor and Racial Solidarity," available on ssrn, Professors Nancy Leong (Denver) and Charlotte Garden (Seattle) seek to bring alive the words of Martin Luther King from which their title is derived:  "As I have said many times, and believe with all my heart, the coalition that can have the greatest impact in the struggle for human dignity here in America is that of the blacks and forces of labor, because their fortunes are so closely intertwined.”

ConLawProfs Leong and Garden deploy a variety of theories and doctrines, anchoring their article in "an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research."  They view their narrative as a counter-narrative to the conventional wisdom that the relationship between unions and people of color is one of rivalry.  Their first section takes on four pieces of conventional wisdom: 

• Interests of White and Non-White Workers Are Fundamentally Opposed
• Unions Benefit Only White Workers
• Unions Lack Racial Empathy
• Unions Don’t Care About Communities of Color

These myths are worth debunking, although Leong and Garden also discuss their genesis in scholarship and doctrine. One of the joys of the paper as a piece of co-authored scholarship is the authors' frank portrayal of their own attempts at understanding and their disagreements.  In considering the difficulty in discerning how to interpret the "Black History Month event" organized by the SEIU, Service Employees International Union, the professors agree that there was "overt exoticism," but differed as to how broadly problematic the entire event should be judged.

The constitutional theory is mostly implicit, but this is an important piece bridging racial equality and employment equality for this Labor Day.

RR
[image: Martin Luther King, 1964, via]

Federal Court Declines to Preclear Texas Electoral Districts Under Voting Rights Act

In the latest chapter of the Texas redistricting saga, a three-judge panel of the D.C. District ruled in Texas v. United States that Texas's redistricting maps failed to merit preclearance under Section 5 of the Voting Rights Act.

The ruling means that the Texas legislature's original redistricting maps fail.  But the ruling doesn't touch the interim maps most recently drawn by the Western District of Texas in the companion Section 2 suit.  Those maps have not been challenged.

The ruling also doesn't say anything about the constitutionality of Section 5.  That's the topic of a cert. petition now before the Supreme Court.

Recall that the case arose when Texas sought preclearance for its redrawn State House, State Senate, and Congressional districts from the three-judge panel in the D.C. District (and not the DOJ).  (Texas redrew its districts to account for its ballooning population and to meet the one-person-one-vote standard.  But Texas, as a covered jurisdiction under Section 4 of the VRA, had to receive preclearance under Section 5 before it could finalize and implement the new maps.)  Soon after Texas filed its Section 5 preclearance case, opponents of the maps filed a claim under Section 2 of the VRA in the Western District of Texas.  While the Section 5 case was pending in the D.C. District, the Western District drew its own maps that, it said, complied with the VRA so that Texas could move ahead with its scheduled primary elections.

The Western District maps went to the Supreme Court in Perry v. Perez, where the Court invalidated them.  After Perry, the Western District redrew the maps, and they haven't been challenged.

Meanwhile, the Section 5 case in the D.C. District moved forward, and that court ruled today that the state's original maps--the ones for which it originally sought preclearance--did not merit preclearance.  As a result, the only maps out there seem to be the Western District's redrawn maps.

Today's case says nothing about the constitutionality of Section 5.  The D.C. Circuit recently ruled on that question, and said that Section 5 is constitutional.  The cert. petition in that case, Shelby County v. Holder (and a related, companion case), is now before the Supreme Court.

The Texas redistricting case is something of a side-show, now that the more central issue in Shelby County is on cert.--with the Supreme Court almost surely to grant review.  But even if the Court overturns Section 5, as seems likely, any maps still have to pass muster under Section 2--the original cause of action in the Western District case.  Shelby County doesn't challenge Section 2.

SDS

Alaska Challenges Preclearance Under the Voting Rights Act

Alaska became the latest state to lodge a constitutional challenge against Section 5 of the Voting Rights Act when it sued AG Eric Holder yesterday for declaratory and injunctive relief in the United States District Court for the District of Columbia.  It's not clear that the case will even make it out of the starting gate, though.  As we wrote here, the Shelby County case, also challenging Section 5 under the exact same theories, is almost surely going to the Supreme Court this Term.

The suit, State of Alaska v. Holder, takes on Section 5 both on its face and as applied to Alaska.  The allegations are simple and familiar: Congress exceeded its authority under the Fourteenth and Fifteenth Amendments in reauthorizing Sections 4 and 5 of the VRA; and the VRA violates the principle of "equal sovereignty" and the Tenth Amendment.

Alaska, a covered jurisdiction under Section 4 of the VRA, says that preclearance is a hassle and potentially interferes with its ability to run its elections.  The state cites DOJ's denial of preclearance earlier this year for a proposed new distribution scheme for the state's Spanish/Tagalog translation of its voter information pamphlet.  It also cites an eleventh-hour preclearance of a redistricting plan, arguing that any later decision by DOJ (either way) might have interfered with the state's primaries.

While this case is disconnected to those events, it probably doesn't matter for standing.  Judge Bates ruled in Shelby County that the County had standing based on its need, as a covered jurisdiction without the possibility of bailout, to prepare for preclearance--the time, expense, etc.  So too here.

But even so, the case is unlikely to move forward, given the near certainty that the Supreme Court will pick up Shelby County this Term.

SDS

Seventh Circuit: No Qualified Immunity Against Age Discrimination Claim Under Equal Protection

A three-judge panel of the Seventh Circuit ruled last week in Levin v. Madigan that individual defendants were not entitled to qualified immunity against a plaintiff's equal protection claim.

As part of the ruling, the panel also held that the Age Discrimination in Employment Act, or ADEA, did not preclude the plaintiff's Section 1983 claim based on the Equal Protection Clause.  This holding puts the Seventh Circuit at odds with every other circuit that's ruled on the question, creating a split.  (District courts outside those circuits are themselves split.)  Because of this, the panel circulated the opinion to all the judges on the Circuit; none voted for a rehearing en banc.  This case looks like a good candidate for Supreme Court review.

Unless and until the case goes up, the Seventh Circuit's ruling means that the plaintiff's Section 1983 case against the individual defendants can move forward.  The ruling says nothing about the merits.

The case arose out of a former assistant attorney general's suit against the Illinois attorney general, in both her official and individual capacities, and the state for firing him and replacing him with a younger attorney.  The plaintiff sued for age discrimination under the ADEA and Section 1983 (under the Equal Protection Clause).  The AG appealed the district court's denial of qualified immunity in her individual capacity.

The Seventh Circuit ruled that the ADEA did not displace the plaintiff's Section 1983 claim for violation of the Equal Protection Clause because (1) the ADEA's text and legislative history didn't expressly preclude a Section 1983 claim based on a constitutional violation and (2) the ADEA's rights and protections didn't line up with the rights and protections under Section 1983.

This portion of the opinion is at odds with every other circuit court to rule on the question.

The court went on to deny qualified immunity, because it was clearly established that age discrimination in employment violated the Equal Protection Clause, so long as the discrimination wasn't rationally related to a legitimate government interest.

SDS

Federal DC Judge Enjoins Small Business Affirmative Action Program as Applied to Military Simulators

In an extensive opinion in DynaLantic Corp. v. United States Department of Defense, Judge Emmet G. Sullivan has enjoined the Small Business Administration and the Department of Defense from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so.

In a nutshell, the judge found that the constitutionality infirmity resided in the agencies' failure to specifically determine "that it is necessary or appropriate to set aside contracts in the military simulation and training industry."  Relying upon City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion), Judge Sullivan stated that " Croson made clear that the government must provide evidence demonstrating there were eligible minorities in the relevant market - in that case, the Richmond construction industry - that were denied entry or access notwithstanding their eligibility," and thus the agencies' lack of specific studies relating to the military simulation industry was fatal.

Yet Judge Sullivan rejected the facial challenge to Section 8(a) of the Small Business Act which permits the federal government to limit the issuance of certain contracts to socially and economically disadvantaged businesses.  The corporation argued that the Section 8(a) program - - - a program that evolved from Executive Orders issued by Presidents Lyndon B. Johnson and Richard M. Nixon in response to the Kerner Commission - - - violated the Equal Protection component of the Fifth Amendment. Applying the rigorous standard of United States v. Salerno, 481 U.S. 739, 745 (1987). requiring that the "challenger must establish that no set of circumstances exists under which the Act would be valid,” Judge Sullivan carefully considered reams of studies, data, and information, as well as the corporation's arguments attacking the provision for being both overinclusive and underinclusive.

This litigation began in 1995 when the Navy determined it would award its contract for a flight simulator for the Huey helicopter (pictured above) through the Section 8 (a) program.  DynaLantic's lawsuit was dismissed for standing, the D.C. Circuit reversed, and then protracted litigation continued as Congress reauthorized the program and a plethora of studies, evidence, and arguments accumulated.

As the educational affirmative action case of Fisher goes to the United States Supreme Court,  DynaLantic is a reminder of the continued legacy of Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), as well as Croson in the government procurement context. 

RR
[image via]

Fisher v. UT - Amicus from Constitutional Accountability Center

Joined by ConLawProfs Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Nueborne, James Ryan, and Adam Winkler, the Constitutional Accountability Center has filed an amicus brief in Fisher v. University of Texas, the "reverse discimination" case set for oral argument in the United States Supreme Court on October 10.  

Dissenting from the denial of en banc review in the Fifth Circuit, Judge Edith Jones highlighted the panel decision's deviations from Grutter v. Bollinger.  The Constitutional Accountability Center brief argues that UT's policy is constitutional under Grutter, but also makes the wider claim that the "text and history" of the Fourteenth Amendment allows governments to "enact race-conscious measures to ensure equality of opportunity."  

ConLawProfs finalizing their syllabi for the semester might consider integrating the amicus brief, other briefs, or one of the scholarly discussions from Vanderbilt Law Review En Banc for the Equal Protection discussion.

RR

Scholarly Discussion on Fisher v. University of Texas

The United States Supreme Court is set to hear oral arguments in the affirmative action case of Fisher v. University of Texas on October 10, having granted certiorari from the Fifth Circuit's decision upholding the UT plan and perhaps informed by Judge Edith Jones' stinging dissent from the denial of en banc review, as we discussed.

The Vanderbilt Law Review En Banc Roundtable has just published a series of relatively brief articles on the case: 

Girardeau A. Spann, Fisher v. Grutter

James F. Blumstein, Grutter and Fisher: A Reassessment and a Preview

Vikram David Amar, Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes

Gerald Torres, Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America

Tomiko Brown-Nagin, The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change

Each of these articles is worth a read and the law review editors promise further exchange among the authors. 

RR

Shelby County, Nix Take Voting Rights Act Challenge to Supreme Court

Petitioners Shelby County and John Nix filed two separate cert. petitions late last week seeking Supreme Court review of a D.C. Circuit decision upholding the preclearance provisions of the Voting Rights Act.  Shelby County's petition is here; Nix's petition is here.  More on the differences below.

The petitions put the preclearance provisions of the Voting Rights Act squarely before a Supreme Court that seems chomping at the bit to take them on--and to overturn them.

The move was expected.  With the Supreme Court's statement three years ago in Northwest Austin Municipal Utility District v. Holder that the preclearance provisions "raise serious constitutional questions," the Court's reiteration more recently in Perry v. Perez, and the spate of challenges now percolating in the lower courts, Shelby County v. Holder was the first circuit ruling dealing squarely with the 2006 reauthorization of the VRA.  A split three-judge panel upheld the provisions and ruled that another, related case (Nix's case) was moot.  The ruling teed the challenge up for Supreme Court review.

At issue: Section 5 of the VRA, which requires covered jurisdictions to obtain "preclearance" from the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia before making changes to their voting standards, practices, or requirements; and Section 4(b), which provides the formula for determining which jurisdictions are covered.

Recall that the D.C. Circuit in Shelby County upheld Section 5 and Section 4(b) of the VRA.  But that court also ruled that Nix's case--challenging the new reauthorization standards that Congress put into place in the 2006 reauthorization--was moot, because the DOJ reversed course and cleared the voting change at issue.

The two cert. petitions cover two distinct issues.  Shelby County's cert. petition argues that the D.C. Circuit erred in upholding Sections 5 and 4(b).  In short, Shelby argues that the preclearance requirement in Section 5 exceeds congressional authority to enforce the provisions the Fourteenth and Fifteenth Amendments--that it's not "proportional and congruent" to the "evil" that it seeks to remedy--and that Congress neglected to change the coverage formula in Section 4(b) in response to changed conditions.

Nix's cert. petition argues that the substantive changes to the preclearance standard that Congress enacted in 2006 exceed congressional authority.  Nix says that Congress, in reauthorizing Section 5 in 2006, changed the preclearance standard in response to two Supreme Court decisions that narrowed that standard, thus exceeding its authority.  Nix claims that before 2006, preclearance could be denied only if the jurisdiction failed to prove that its voting change did not have the "purpose" or "effect" of causing "a retrogression" in minorities' "effective exercise of the electoral franchise," as determined by "all the relevant circumstances."  (Citing and quoting Georgia v. Ashcroft and Reno v. Bossier Parish School Board.)  But Nix argues that Congress changed this standard in the 2006 reauthorization by eliminating the "all relevant circumstances" flexibility and by requiring covered jurisdictions to "prove that even a change that does not make minorities worse off lacks the 'discriminatory purpose' of not making them better off."  These changes, say Nix, exceed congressional authority.

Because the D.C. Circuit ruled Nix's case moot, Nix has the additional burden of arguing that his case isn't really moot.  He does this by claiming that the DOJ cleared the jurisdiction only to avoid judicial review of his arguments.

With two strong statements from the Court about the questionable constitutionality of VRA preclearance, look for the Court to grant these petitions--and likely overturn these key provisions of the VRA.

SDS

 

Federal District Judge Declares Arkansas School Choice Law Unconstitutional

Federal District Judge Robert Dawson declared the Arkansas Public School Choice Act of 1989 unconstitutional on Friday in his opinion in Teague v Arkansas Board of Education.  Judge Dawson concluded that the statute's use of race violated the Fourteenth Amendment's Equal Protection Clause,  largely relying on the Supreme Court's 2007 opinion in Parents Involved in Community Schools v. Seattle School District No. 1, because while there might be a compelling government interest, the statute was not sufficiently narrowly tailored to serve that interest and therefore survive strict scrutiny.

The statutory scheme is a complex one.  Generally, students who attend public school must do so in the school district in which they reside.  This general rule has some exceptions, including the Public School Choice Act.  However, the choice created is generally subject to a race-based limitation: "No student may transfer to a non-resident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district."  However, even this exception had exceptions.  Additionally, the 2011 Legislature amended the School Choice Act to specifically state that the race or ethnicity of a student shall not be used to deny a student the ability to attend a school in the student’s school district of choice if the transfer is "to a school that has been designated by the State as a school performing higher than that in which the student is currently enrolled or to which the student has been assigned."  Moreover,  the statute provided that if conflicts with the provisions of a federal desegregation court order applicable to a school district, the provisions of the federal desegregation court order shall govern.

Interestingly, Judge Dawson used both the 2011 amendment and the escape clause of federal court desegregation orders to support his conclusion that the statutory scheme was not narrowly tailored.  He reasoned that the 2011 amendment was evidence that "some of the state’s lawmakers themselves have determined that the limitation" in the statute "may not pass the strict scrutiny test."  He also stressed that the judicial desegregation order exception undermined narrowly tailored because the statutory scheme "applies state-wide without regard to whether a resident or non-resident school district has a history of de jure or de facto segregation."  Obviously, however, any limitation to school districts under judicial supervision vitiates the need for the statute.

Not surprisingly then, Judge Dawson declared the statutory provision unconstitutional.  More surprisingly, he declared the entre statute unconstitutional, finding that severability is a matter of state law.  Looking at legislative intent, he concluded that severing the provision would undermine the legislative interest, including the legislature’s express statement that inter-district transfer is permissible “provided that the transfer by this student would not adversely affect the desegregation of either district."

 

1958 photo of "the teenagers who integrated Central High School, Little Rock, Arkansas" with NYC Mayor Robert Wagner, by Walter Albertin. Pictured, front row, left to right: Minnijean Brown, Elizabeth Eckford, Carlotta Walls, Mayor Wagner, Thelma Mothershed, Gloria Ray; back row, left to right: Terrance Roberts, Ernest Green, Melba Pattilo, Jefferson Thomas.

Judge Dawson was attentive to the history of school segregation in Arkansas, although he sought to expand the portrait beyond the well-known events in Little Rock that resulted in Cooper v. Aaron:

Arkansas has a complicated history with regard to race relations in general, and equal opportunity education in particular. From resistance in the 1950s to minimum compliance in the 1960s, some parts of the state have fought integration even since the Brown v. Board of Education of Topeka decision. . . . Arkansas is home to both the first public school in the former Confederate States of America to implement racial desegregation (Charleston) and the high  school which drew the nation’s attention in 1957 when the state National Guard was utilized to keep black students from entering Central High School in Little Rock . . .

 The final line of Dawson's 32 page opinion illustrates the continuing legacy of this history: "The Court fully expects this case to be appealed in view of the important issues presented in this case."

RR
[image via]

Florida Federal Judge Grants Preliminary Injunction Against Law Regulating Voter Registration

In his opinion today in League of Women Voters of Florida v. Browning, Northern District of Florida Judge Robert Hinkle held that the plaintiffs had a likelihood of prevailing on the merits of their claim that Florida Statutes § 97.0575, as amended in 2011, and its  implementing rule, Florida Administrative Code Rule 1S-2.042, violate the First Amendment. 

Judge Hinkle found that the "statute and rule impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter- registration office and effectively prohibit an organization from mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional."

The judge applied a relatively low standard, finding that "an election-code provision of this kind must serve a legitimate purpose that is sufficient to warrant the burden it imposes on the right to vote."  And perhaps a well-crafted law could survive such judicial review.  But Judge Hinkle stated:

This statute and this rule are not well crafted. To the contrary, they are virtually unintelligible, close to the point, if not past the point, at which a statute—especially one that regulates First Amendment rights and is accompanied by substantial penalties— becomes void for vagueness.

Rejecting Florida's argument that certain issues in the statute's application "will need to be worked out,"  Judge Hinkle was dismissive.  Not only would a voter-registration organization be "ill advised to risk significant fines—and the attendant damage to the organization’s reputation—that would result from failing to comply with provisions this difficult to parse,"  but it is also " not too much to ask the state to work out the issues in advance," when "rights of this magnitude are at stake."  

Judge Hinkle's opinion provided several different practical scenarios.  For example,

Another substantial flaw in the statute and rule—and a clearer violation of controlling law—is their disregard of a voter-registration organization’s interest in mailing in completed voter-registration applications rather than hand delivering them. The statute makes no provision for mailing at all. If the statute means what it says—that an application must be received in the voter-registration office within 48 hours after the applicant signs it—a prudent voter-registration organization can never mail in an application. This is so because even if the organization delivers the application to the Postal Service immediately after the applicant signs it—and this in itself would be virtually impossible—the organization cannot be assured that the Postal Service will deliver it within 48 hours.

Judge Hinkle found the constitutional arguments more pertinent that those under the National Voting Rights Act, and did sustain a few of the Florida provisions.  But this is certainly a substantial set back for the controversial Florida statute and administrative rule that severely curtailed voter registration activities.

RR

CFP: AALS ConLaw Section

Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
 
The Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.

The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
 
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.

The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
 
Deadline Date for Submission: August 1, 2012
 
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT pepperdine.edu.

RR 

D.C. Circuit Upholds Key Provisions in Voting Rights Act

A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act.  The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional.  We covered the case in the lower court here and here; those posts contain more thorough background.

The ruling tees up the case for Supreme Court review.  The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA.  It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder.  This case gives it a second crack, with the constitutional question unavoidably front-and-center.

When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit).  In particular: Do congressional findings adequately support Sections 5 and 4(b)?  If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.  

But there's another question to watch for: By what measure will the Court scrutinize congressional findings?  In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b).  This Court has suggested that it won't give much.

Congress had a thorough record when it reauthorized the VRA in 2006.  The question is whether it was thorough and precise enough for this Court.  Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.

In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case.  The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:

First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . .  Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."

Op. at 14.

In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006.  (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)

Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment.  This illustration summarizes the point:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?  A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . .  As to federal observers, Indiana appears clearly "better"--it received none . . . .  As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . .  This distinction in evaluating the different states' policies is rational?

Dissent, at 32.

SDS

MLK Day 2012

President Obama's Presidential Proclamation on Martin Luther King Day, 2012, includes these words:

At a time when our Nation was sharply divided, Dr. King called on a generation of Americans to be "voices of reason, sanity, and understanding amid the voices of violence, hatred, and emotion."  His example stirred men and women of all backgrounds to become foot soldiers for justice, and his leadership gave them the courage to refuse the limitations of the day and fight for the prospect of tomorrow.  Because these individuals showed the resilience to stand firm in the face of the fiercest resistance, we are the benefactors of an extraordinary legacy of progress.

Today, Dr. King is memorialized on the National Mall where he once spoke, a symbol of how far our Nation has come and a testament to the quiet heroes whose names may never appear in history books, but whose selflessness brought about change few thought possible.  Dr. King's memorial reminds us that while the work of realizing his remarkable dream is unending, with persistence, progress is within our reach.

On the MLK memorial itself, the "drum major" quote has been the subject of controversy and is being "corrected."  The government sponsored MLK Day of Service continues to include the Drum Major for Service Award, as well as the correct/full "drum major" quote:   "Yes, if you want to say that I was a drum major, say that I was a drum major for justice; say that I was a drum major for peace; I was a drum major for righteousness… We all have the drum major instinct.”  Excerpt from The Reverend Dr. Martin Luther King, Jr.'s "Drum Major Instinct" sermon, given on February 4, 1968.

For ConLaw scholars, it might also be a good day to (re)read Randall Kennedy's "Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott," 98 Yale Law Journal 999 (1989) (available on JSTOR) or Camille Nelson's " The Radical King: Perspectives of One Born in the Shadow of a King," 32 New York University Review of Law & Social Change, 485(2008) (available on ssrn), or view MLK's last speech.

RR
[image: personal collection]

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

Acension Parish School Board, Redistricting, and Equal Protection: The Fifth Circuit Remands

In Lewis v. Acension Parish School Board, the Fifth Circuit's three judge panel issued as many opinions as there were judges, and remanded the case for further evidence development regarding whether the School Board intended to use racial classifications and whether its actions had a discriminatory effect, citing Washington v. Davis.

The factual background is a complicated one, but essentially the school district sought to both attain enrollment maximums and maintain unitary status, hiring a demographics application specialist who developed various options, conducting public hearings, and doing statistical analysis which included current and projected "enrollment, percentage of African-American students, and percentage of at-risk students at each school in the district" under the options.  The board ultimately adopted the option known as "2f."

The plaintiff Lewis, according to the per curiam opinion, "does not suggest that at-risk students are a suspect class for equal protection purposes. His claim is that minority students are being discriminated against based upon their race by a disproportionate influx of at-risk students into their schools."  The trial court found the adopted plan facially race-neutral, and that Lewis had not presented competent evidence of discriminatory motive by the School Board or disparate impact resulting from Option 2f.  Applying a rational basis test, the trial court found there was  a legitimate government interest in alleviating school overcrowding.  The trial court presumably also found that the means chosen were rationally related, although the Fifth Circuit does not highlight this portion of the necessary analysis.

The per curiam Fifth Circuit opinion reverses this conclusion:

We find the court's analysis troubling for two reasons. First, it is unclear how, on the record before us, the court could make a factual finding as a matter of law about the Board's lack of discriminatory purpose. Second, the court's assumption that it might be justifiable to use racially-based decisions for the "benign" purpose of maintaining post-unitary "racial balance" among the schools in the system is at least in tension with the Supreme Court's decision in Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007).

The per curiam opinion also noted that the question of whether the plaintiff Lewis had standing as to one of the two plaintiff children could be cured on remand.

Concurring, Chief Judge Edith Jones stressed that "race-based student assignments undertaken "to preserve unitary status," like other racially motivated government actions, presumptively violate the equal protection clause." 

Concurring in part and dissenting in part Judge Carolyn King wrote at length after first reasserting that Lewis' claim concerned the effect on minority students of the transfer of at-risk students, quoting from the oral argument.  Judge King agreed with the trial court that Option 2f is race-neutral and that there was no evidence of discriminatory intent.   Judge King then noted that plaintiff Lewis presented no evidence or argument regarding a lack of rational basis and the judge's own "review of the record indicates that Option 2f may have in fact been the most practical option."  Judge King then distinguished the factual scenerio from the one in Parents Involved.

While the judges did disagree about the applicable legal standard and its application, much of the disagreement amongst the judges concerned plaintiff Lewis' precise legal claim.  Thus, it seems that remand is the most appropriate course.  Although it also seems that this case may engender extensive litigation.

RR
[image from the Ascension Parish School Board website via]

 

Bork’s “75 page” Memo to Goldwater on the 1964 Civil Rights Act’s Unconstitutionality?

Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?

Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney.   He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.

Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional.  Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.

When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater.   Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act.   In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate.   Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964.   In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill.  Perry wrote:

The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill.  They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.

 (at 25).

Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians.  The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees.  The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here).  It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964.   As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.

Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files?  Did it ever?     

Almost a half-century has passed.  It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be).  But page-number precise references to a document that is not available is intriguing. 

So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.

RR
[image: Robert Bork, 2007, via]

Juneteenth

June 19th, celebrated as a commemoration of the end of chattel slavery in the United States, is not the date of the Emancipation Proclamation, issued by Lincoln on January 1, 1863, but the date that it was read aloud in Texas more than two years later accompanied by an announcement of the end of the Civil War.   The Thirteenth Amendment would be adopted by the Reconstruction Congress later that year, in December  1865.

Jim Chen, now Dean at University of Louisville Brandeis School of Law, in his article Mayteenth, 89 Minn. L. Rev. 203 (2004), available on ssrn, explained the significance of June 19, 1865:

On that day, a Union regiment led by Major General Gordon Granger landed at Galveston, Texas. The Granger regiment not only reported the two-month-old news that the Civil War had ended with Robert E. Lee's surrender at Appomattox Courthouse on April 9, 1865, but also enforced (nearly two and a half years after the fact) the Emancipation Proclamation of January 1, 1863. . . . Juneteenth is, as it were, Martin Luther King, Jr.'s birthday without the tragedy.

As an epochal event, Juneteenth managed rather remarkably to arrive both too late and too early. The two-month delay in reporting the news of the Confederacy's defeat and the two-year delay in the enforcement of the Emancipation Proclamation would prove to be trivial in comparison with the glacial pace of legal reform after the Civil War. The nominal end of slavery foreshadowed the bitter disappointment of Reconstruction and the strange career of Jim Crow. A full lifetime after the end of Reconstruction, William Faulkner described all too perfectly the grip of slavery's dead hand: “The past is never dead. It's not even past.”  Most of the slaves emancipated in 1865 never enjoyed some of the simplest and most essential civil rights. Meaningful protection of the right to vote without regard to race or color, to name merely one example, would wait more than a century. Exactly 100 years and 48 days elapsed between Juneteenth and the passage of the Voting Rights Act of 1965.

To celebrate Juneteenth, in other words, is to acknowledge unfinished business. Neither Union victory in the Civil War nor Reconstruction came close to discharging America's debt to its black citizens. Indeed, Reconstruction effectively enabled the South to win the Civil War.  Yet Juneteenth remains worth remembering and celebrating. Rail as we might (and should) against the persistence of racism in America, the preservation of the Union and the abolition of slavery define much of what is good and heroic in American history. To borrow a key word from the civil rights jurisprudence of Chief Justice Earl Warren, a negotiated peace with the Confederacy would have been “unthinkable.” At a certain level of abstraction, quibbling over the precise terms of either victory seems downright ungrateful.

Juneteenth acknowledges a fundamental truth: no matter how long it is delayed, and no matter how imperfectly it is implemented, emancipation beats the pants off enslavement. What separates Juneteenth from other commemorations of wartime victory is its sense of irony and its humility. Because of these traits, and not in spite of them, Juneteenth's celebrants understand the crucial point. However awkwardly accomplished, the outlawing of slavery is a monumental achievement worth commemorating as long as the Republic endures.

 

In his article Apology Lite: Truths, Doubts, and Reconciliations in the Senate's Guarded Apology for Slavery, 42 Connecticut Law Review CONNtemplations 1 (2009), available on ssrn, LawProf Kaimipono David Wegner argues that the United States Senate should "formally commemorate Juneteenth" to help show the sincerity of its apology for slavery and further restorative justice goals including reparations.

Among those campaigning for Juneteenth as a national holiday is US Congressperson from Texas Sheila Jackson (pictured above in 2003 via).

RR

 

Attorney's Fees for Frivolous Claims

The Supreme Court ruled today in Fox v. Vice that defendants in civil rights actions are entitled to attorney's fees under 42 U.S.C. Sec. 1988 only for costs that the defendant would not have incurred but for any frivolous claims--those costs incurred because of, but only because of, a frivolous claim.

The case involved a suit in state court by a former candidate for chief of police against the then-incumbent and the town for state-law claims, including defamation, and federal civil rights claims under 42 U.S.C. Sec. 1983, including interference with the right to seek public office.  The defendants removed the case to federal court and, after discovery, sought and won summary judgment on the federal claims.  (The federal court sent the state claims back to state court, where they remain.)  Both parties agreed that the federal claims were "no[t] valid." 

The defendants moved for attorney's fees under Section 1988 (authorizing a court to award reasonable attorney's fees to the prevailing party, plaintiff or defendant, in certain civil rights cases).  The district court granted attorney's fees on the basis that the federal claims were frivolous.  The court awarded fees covering all of the defendants' attorneys' work, not just the work associated only with the federal claims, because the "various claims arose out of the same transaction and were so interrelated that their prosecution or defense entailed proof or denial of essentially the same facts."  A divided Court of Appeals affirmed, deepening a split among the circuits on the question of how to calculate attorney's fees for a defendant when some claims are frivolous and some claims are non-frivolous.

A unanimous Supreme Court gave this answer:

Section 1988 allows a defendant to recover reasonable attorney's fees incurred because of, but only because of, a frivolous claim.  Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.

Op. at 8.  In this case, the defendants were not entitled to fees for attorney work on non-frivolous claims that overlapped with attorney work on frivolous claims:

In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may recover the reasonable attorney's fees he expended solely because of the frivolous allegations.  And that is all.  Consistent with the policy underlying Section 1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.

Op. at 13.

The result means that civil rights plaintiffs who assert both frivolous and non-frivolous claims may have to pay attorney's fees only when the defendant can segregate out attorney work on the non-frivolous claims--where there's no overlap between the work on the two types of claims.  This is a relatively plaintiff-friendly result, considering that some lower courts, including the lower courts here, would charge plaintiffs for attorney's fees for all defendant work on frivolous claims (including that work that the defendants' attorneys would have done to advance interrelated non-frivolous claims).

Justice Kagan wrote the plain-spoken, easy-to-read opinion, rife with hypothetical illustrations to show how the Court's rule will work.  She emphasized the discretion that trial courts have in determining attorney's fee awards, and underscored the deference that appellate courts owe to those determinations, concluding with this hat-tip to the judge-as-umpire analogy:  "A trial court has wide discretion when, but only when, it calls the game by the right rules."

SDS

Court to Hear Right to Counsel Case

The Supreme Court today granted cert. in Turner v. Price, a case from the South Carolina Supreme Court rejecting petitioner's claim that he had a constitutional right to counsel in a civil contempt proceeding.

Petitioner Michael Turner appeared in South Carolina family court in 2008 on a rule to show cause why he should not be held in contempt for failure to pay child support.  (He owed nearly $6,000 and hadn't made a payment in 18 months.)  He was not represented by counsel.  The court found him in willful contempt of the child support order and sentenced him to twelve months in a detention center, "which sentence he could purge himself of and avoid by full payment of his child support arrearage."

The South Carolina Supreme Court rejected Turner's argument for court-appointed counsel under the Sixth and Fourteenth Amendments.  The decision turned on Turner's ability to avoid the sentence altogether:

Here, the family court judge found Appellant in willful contempt of the support order and sentenced him to twelve months in a detention facility, stating, "He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release."  This conditional sentence is a classic civil contempt sanction.  Therefore, Appellant is not constitutionally entitled to appointment of counsel.

. . .

Because Appellant may avoid the sentence altogether by complying with the court's previous support order, he holds the keys to his cell door and is not subject to a permanent or unconditional loss of liberty.

The court acknowledged that it was adopting the minority position on the issue.

Remarkably, especially considering the federal constitutional claims, the court did not cite a single U.S. Supreme Court case.  (It cited precious few cases at all, and no federal cases outside the footnotes.) 

The U.S. Supreme Court directed the parties to brief a second issue in the case: whether the Court has jurisdiction to review the decision at all.  (Turner served out his contempt sentence, and it's not clear that the state courts ruled on all his claims now before the Supreme Court.)

SDS