Remedial Grief: Leveling Down in Sessions v. Morales-Santana, Part 2

by Deborah L. Brake, Professor of Law and John E. Murray Faculty Scholar, University of Pittsburgh School of Law, guest contributor

Although the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights. In deciding the remedial issue, the Court should have considered two questions: first, does the leveling down option fully remedy the constitutional injury? And second, does the leveling down response punish and retaliate against the assertion of equality rights?

The Court skates around this first question, but does not give it sufficient attention. The Court implicitly assumes that the equal protection injury begins and ends with the differential treatment of mothers and fathers. Admittedly, the Court rightly acknowledges that the injury extends beyond the tangible benefit itself – the conferral of citizenship – and encompasses the stigma resulting from the differential treatment. Hence, the majority’s disagreement with the two concurring Justices, Justice Thomas and Justice Alito, who would have left the constitutional violation in place because, in their view, striking the differential treatment would not alleviate any injury to the citizen-father, since he would still fail to confer citizenship to his offspring. As the Majority rightly recognizes, the concurring Justices’ approach would leave the stigmatic harm from the differential treatment unremedied. But the majority stops short of discerning a broader injury of stigma and stereotyping that may, conceivably, remain from the discrimination, even when the differential treatment ends. Such harms may continue in the wake of leveling down remedies, as in Jackson, Mississippi, when the swimming pools closed, or when the school in the National Honor Society case denied everyone the privilege of honors recognition. The sting of stereotypes (for example, in the latter example, that “good girls” don’t get pregnant, or in the swimming pool case, that persons of color are not fit to swim with white persons) can remain even when the differential treatment ends.

But leveling down does not always, or necessarily, reinforce stereotypes that are in tension with equality norms. A footnote in the Court’s opinion notes that in Title VII cases invalidating employer policies granting preferential treatment to women – such as gender-specific minimum wages, break times, and leave policies – courts have not required employers to extend such “perks” to male employees. Surely the Court is correct about these cases, but not because the remedy imposed by the courts comported with the defendant’s intentions. The correctness of the result has more to do with the fact that, as the Court noted, such “perks” may have the veneer of favoring women but in reality stigmatize women and make employers less likely to hire them. In these cases, the nullification remedy did not reinforce stereotypes devaluing women workers, but rather sent the message that women belong in the workplace on equal terms as men. That this result also likely conforms to employers’ remedial preferences may be glossing on the remedial cake, but should not be the dispositive factor.

The second consideration is more closely related to legislative intent, but not in the way the Court assumes, asking only what Congress would have intended had it known that a male plaintiff would prevail in lawsuit to strike the offending provision. Instead, the relevant inquiry should ask whether, at least in part, the legislature intends nullification as a way to punish and discourage the assertion of equality rights. To return to the Title VII cases the Court flagged, the remedy nullifying preferential treatment for women was compatible with anti-discrimination norms in those cases partly because it likely did not punish the workers challenging the discrimination. With special treatment nullified, work and wages would be shared more equally, potentially benefiting male workers, who had been left holding the bag when women were given special breaks and benefits. At the same time, as noted above, nullification ended the stigma devaluing women workers as special risks to employers and in need of special rules. On the other hand, in the Title IX example where a school threatens to cut male athletes if women sue for equal sports opportunities, the leveling down threat raises concerns about retaliation if this option is driven in part by a desire to squelch the discrimination claim and punish the women for pressing their rights. Granted, it is not always easy to determine whether a leveling down move is motivated by a retaliatory intent or a legitimate reason—though the difficulty of discerning an actor’s intent is hardly unique to the remedial issue. The point here is that a long string of Supreme Court precedent has recognized that a proscription on retaliation is implicit in the equality norms underpinning anti-discrimination law; courts should ensure that the remedies to discrimination comport with this principle.

The analysis advocated here often eludes easy answers and this case is no exception. My disagreement with the Court is not necessarily that it reached the wrong result, but that it short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights. The touchstone should not be the remedial preference of the discriminator, but an analysis of whether nullification fully remedies the injury of the discrimination and whether it functions to punish the assertion of equality rights. The Court should have considered whether reverting to the stricter residency requirements for all parents fully eradicates the underlying gender stereotypes about the strength of maternal bonds and the low expectations for paternal influence on children’s values. Given that Congress was willing to ease up on the residency requirements for citizen mothers, does its abandonment of the more lenient rule if it had to include fathers reflect a deep-seated resistance to viewing unwed fathers as legitimate parents, regarding them as insufficiently bonded to their children to deserve citizenship-conferral rights? Or would it reflect a judgment, free from gender stereotypes, that the longer residency is appropriate for all parents in order to ensure the transmission of American values? The relationship between the constitutional injury and the remedy may be difficult to parse, but it is not determined merely by asking the question of what the legislature would have wanted.

The second consideration raised by leveling down remedies – that such responses can function as retaliation – also lacks the virtue of simplicity. Assuming the Court is right about Congress’ preference for nullification in the event of constitutional infirmity, does that preference stem from a desire to punish and deter challengers? Or is it because Congress determined that the longer residency period would best ensure the conferral of American values that should attach to citizenship? Again, this question may not lead to obvious answers (though it is perhaps no more elusive, in the end – indeed, the Second Circuit below opted for a different reading of legislative intent), but it is a different question than that of what Congress intended.

In the final analysis, perhaps the difficulty of these questions justifies a preference for extension over nullification, placing the burden on the defendant to prove that nullification neither perpetuates the stigmatic and stereotyping injuries of the underlying discrimination nor retaliates against the challengers. A more complete analysis of leveling down remedies might have helped flesh out the normative underpinnings of the preference for extension acknowledged, but not ultimately applied, by the Court, and its relationship to legislative intent.

By limiting the inquiry to a search for legislative intent, the Court did a disservice to the development of equality law. The Court’s analysis of the remedial issue in Morales-Santana leaves intact the force of leveling down as a strategy for derailing equality rights, primed to resurface and perpetuate inequality, and punish those who challenge it, on another day, in another case.

Editors' note:  Part 1 of this blog is available here.  This is one of a series of blogs analyzing the decision in Sessions v. Morales-Santana from a range of perspectives. Other entries in the series can be found here , here and here.