Remedial Grief: Leveling Down in Sessions v. Morales-Santana, Part 1

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

Luis Ramon Morales-Santana, the son of a U.S. citizen father and an alien mother who were not married at the time Morales-Santana was born outside of the United States, succeeded in challenging the constitutionality of the Immigration and Nationality Act (INA), which required a longer U.S. residency period for citizen fathers than citizen mothers to confer citizenship to their natural born children in such circumstances.  Although Morales-Santana won his case, Sessions v. Morales-Santana, in a Supreme Court decision handed down on June 12, 2017, he emerged from his victory no better off than if he had lost.  Moreover, after the Court’s ruling, unless Congress takes action to legislate a different result, children born to U.S. citizen mothers in the future in similar circumstances—outside the United States to unmarried parents including one U.S. citizen and one alien—will have their U.S. citizenship determined under the stricter set of rules that previously applied only to citizen-fathers. 

Morales-Santana, who was born in the Dominican Republic in 1962 and has lived in the United States since the age of thirteen, would not now be facing deportation for his troubles with the law if his father had been subject to the same rules that the INA applied to U.S. citizen mothers in transmitting citizenship to their children.  Although the Court held that the sex-based different treatment of fathers violated the equal protection clause, it decided that the proper remedy is to nullify the more lenient residency rules that the INA applied to unwed citizen mothers rather than extend that leniency to unwed citizen fathers. 

The remedy that the Court ordered – nullification rather extension of the more favored treatment – is a classic example of leveling down in response to a violation of equality rights.  The problem of leveling down – that everyone can be made worse off from the successful invocation of equality rights – is endemic to equality law, whether its source is constitutional or statutory.  One of the most famous examples of leveling down occurred when Jackson, Mississippi, after losing a case challenging the city’s operation of racially segregated swimming pools, decided to close the pools rather than integrate them.  The disappointed African American residents of Jackson sued, challenging the pool closure as a violation of the equal protection clause.  The Court disagreed, finding the city’s response, closing the pools for everyone, was racially neutral and ended differential treatment.

This tried and true tactic is not merely a remnant of segregation.  Leveling down surfaces periodically as a response to equality claims.  In Title IX litigation challenging unequal opportunities for girls and women in sports, schools often threaten that such claims will only result in their taking opportunities from male athletes, ending the discrimination with no benefit to female athletes, and leaving them holding the blame for making male athletes worse off.  In an example from another case, a pregnant girl who was kicked out of the school’s National Honor’s Society for becoming pregnant successfully sued her school for sex discrimination.  Instead of responding by letting the girl participate, the school ended its participation in the National Honor Society altogether – it leveled down.  Left unchecked, leveling down can be an effective strategy for de-railing equality claims altogether.  Worse yet, in some cases (though not all), the leveling down can exacerbate the stereotypes and injuries from the original discrimination.  In Jackson, Mississippi, for example, the empty swimming pools likely compounded the sting of the stigma from the original segregation.

Leveling down is a thorny and under-analyzed response to discrimination, and one that courts often fail to give sufficient attention.  The Morales-Santana decision is no exception.  Justice Ginsburg’s opinion for the Court discerns two principles for deciding between nullification and extension.  One the one hand, the Court identifies a general preference for extension.  On the other hand, the Court confidently asserts that the choice between nullification and extension turns on legislative intent, and how the legislature, had it known that the offending provision would be found unconstitutional, would cure the violation.  The Court’s invocation of these two principles is somewhat mystifying.  The Court does not identify any source from which a preference for extension derives, other than to cite its own cases blithely asserting that such a preference exists (again, without identifying its source).  Nor does the Court attempt to square the preference for extension with the decisive role it gives to legislative intent.  If legislatures are more likely to favor extension over nullification in their intent, there is no attempt to prove this as an empirical matter.  In the end, the preference for extension seems to drop out of the picture in the face of the Court’s discernment of a legislative intent to nullify rather than extend the favored treatment.

By retreating to congressional intent and abandoning the general preference for extension, the Court does a disservice to the development of equality law, leaving no discernible check on leveling down where the entity that discriminated (in this case, the Congress) desires to remedy the violation by removing the benefit from all rather than extending it to the disfavored group.  Because the Court viewed Congressional intent as dispositive, the Court treated the remedy as a closed issue, having discerned a congressional preference for nullification.

Tomorrow, in part two of this post, I will offer two considerations that should have informed the Court’s decision, and argue that the analysis advocated here comes closer than the Court’s approach to ensuring that leveling down remedies are compatible with the principles of equality law.

Editors' Note:  This posting is part of a Scholarly Voices symposium on Sessions v. Morales-Santana.  Check out the other postings here and here.