Category: Civil Rights

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NY Court of Appeals Decides Same-Sex Marriage Case

New York’s highest court handed down its eagerly anticipated decision in Hernandez v. Robles this morning. The court first decided that New York statutes did in fact limit marriage to opposite-sex couples, then proceeded to analyze that restriction under a rational basis test, defining the relevant right as not the right to marry a person of one’s choosing, but “[t]he right to marry someone of the same sex.” It found that the New York legislature could have had rational bases for drawing a line between opposite-sex and same-sex couples:

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Casting Fresh Light On A Quiet Civil Rights Hero

This week, Is That Legal featured a mini-symposium commemorating the life of the recently deceased Mitsuye Endo, a Japanese-American woman who sued to challenge her internment during WW II. Her case, which came out quite differently than the dark landmark, Korematsu v. United States, may have triggered the end of FDR’s internment policy. Eric Muller, Jerry Kang, Greg Robinson and Patrick Gudridge contributed interesting essays casting fresh light on an overlooked historic individual and Supreme Court decision. Read these posts here, here, here, and here.

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Grutter Redo, Part 3

Recall that in a earlier post, I wrote about Judge Kozinski’s concurring opinion in the 9th Circuit ruling which upheld the Seattle school choice plan. His view was that rational basis review was preferable and strict scrutiny inappropriate because while the “program does use race as a criterion, [it does so] only to ensure that the population of each public school roughly reflects the city’s racial composition.” Kozinski’s position raises a number of interesting questions — at least one of which I alluded to before — the potential appeal of his approach to Justice Kennedy. But now I want to focus on the normative question which lies at the heart of Kozinski’s approach.

Let us set aside for a moment the Court’s view, which it has repeatedly reaffirmed in cases like Adarand, Grutter and Johnson v. California, that strict scrutiny review must apply to all racial classifications. The question I want to pose is this: is there a meaningful distinction between the racial preference that was at issue in Grutter, and the racial classification scheme that is challenged in the K-12 cases the Court has recently accepted. To assist you in answering this question, I’ll provide a quick review of the use of race in the two situations.

Grutter concerned the University of Michigan Law School’s admissions policy which sought to enroll a “critical mass of underrepresented minority students.” In short, while the policy did not set aside a fixed number of seats in the incoming class for minority group members, it did consider race or ethnicity “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Even though race was used flexibly (no bonus points or set asides as was the case in Bakke), there is little doubt that with respect to some candidates, race was outcome determinative. That is, race was outcome determinative for some white candidates in the sense that minority group members with identical qualifications would have been admitted to the Law School while they were not. (We can address the standing difficulties raised under this scenario at a different time.)

Contrast the Law School’s admissions plan in Grutter with the Seattle school choice plan. Under the Seattle plan, race was used as a tiebreaker. In the first instance, students are given their choice of schools. It is only when a school becomes oversubscribed and racially imbalanced that the racial tiebreaker comes into play, and even then it only operates on the margins; effecting only schools where the “student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole.” Finally, we should note that under the Seattle plan, no student is denied an opportunity to attend a public school in the school district; all students are placed in some public school within the district. Thus, Judge Kozinski’s view of the Seattle plan was, “that a student is denied a school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability.”

Do you agree? Are the Grutter and Seattle plans distinguishable? Is it really true that one plan attaches “stigma” to a frustrated applicant while the other inflicts no such stigmatic harm to the students? Isn’t one argument that the stigmatic impact of each plan is a matter of degree. If that’s the case, then perhaps Kozinski is right after all that a heightened form of rational basis review is superior because it would allow the Court to take all of the relevant facts into consideration. Unless you think strict scrutiny, in the race context at least, already performs this function.

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Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.

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Lots Worth Reading At Is That Legal

Eric Mulller, over at Is That Legal, has been very busy for the last few days. First he offered a trenchant critique of Pope Benedict’s talk at Auschwitz last week. (“The Pope’s Disasterous Speech At Auschwitz.”) Then he engaged Dean Esmay over what he frames as Esmay’s propogation of ” the revisionist myth of a terrorized German populace whose will was overborne.” You know the world is topsy-turvy when John Leo is citing Eric approvingly.

Now Eric’s writing about an interesting development in Wilmington, North Carolina: a legistlatively authorized commission has concluded that an 1898 race riot there was a political coup d’etat that reversed the fortunes of the city’s African-American community for years to follow. The committee offered recommendations “to repair the moral, economic, civic and political damage wrought by the violence and discrimination resulting from a conspiracy to re-take control of city, county, and state governments by the Democratic Party’s white supremacy campaign.” The executive summary is here.

This report will presumably be of great interest to Al Brophy, who served as counsel to the Tulsa Race Riot Commission. You can find a number of links to Tulsa Race Riot materials here.

On a more self-interested note, we’re very excited that Eric will be visiting with us here at Co-Op starting in a couple of weeks!

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Whistleblowers and Stereotyped Cultural Norms

I’m a little slow to weigh in on this issue, but I just received the latest edition of the ABA Journal. This month, they have a story, “Culture Clash,” by John Gibeaut describing how Sarbanes-Oxley’s whistleblower provisions are causing trouble for foreign cross-listed companies. Ideoblog and Conglomerate have already provided some commentary about the article, which begins as follows:

Americans like to elevate whistleblowers to near folk-hero status, from Daniel Ellsberg, who leaked the Pentagon Papers to Sherron Watkins, who exposed the Enron Corp. financial scandal that in 2002 moved Congress to pass the fraud-busting Sarbanes-Oxley Act. Indeed, Watkins shared Time magazine’s Person of the Year honors in 2002 with World Com Inc. whistleblower Cynthia Cooper and FBI agent Collen Rowley, who accused the bureau of mishandling information on suspected hijacking plotter Zacarias Moussaoui before the Sept. 11 terrorist attacks.

Say whistleblower in Germany, however, and the term most likely conjures up memories of the Gestapo, Adolf Hitler’s secret police. In France, the term evokes images of the Vichy regime’s collaboration with the Nazis and of neighbors ratting out one another.

I think that the beginning of the article relies on some flawed cultural stereotypes of both Europeans and Americans. Be that as it may, I would question the author’s proposition that American whistleblowers enjoy some sort of elevated status. About a year and a half ago, I wrote an article about (American) whistleblowers and the Sarbanes-Oxley Act. In the article, I argue that whistleblowers are not being given enough protection. Not under state employment law, and not under Sarbanes-Oxley either. Studies – cited in my article – show in graphic detail that American whistleblowers end up unemployed, broke, divorced, and depressed.

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Discrimination Law Going to the Dogs?

Chihuahua.jpg

I, too, saw the NYT story on animals and the ADA. Despite puns aplenty in both the story and in Jason’s (excellent) post directly below, I was initially hesitant to give this more press than it had already received. That’s because I hate to see the ADA – an important piece of civil rights legislation – seen as a law that leads to ridiculous results.

Perhaps all is well until the non-disabled see a loophole in the law and try to exploit it. After all, the law makes sense as a public accommodation when applied to seeing-eye-dogs and other dogs that are “working animals,” but becomes ridiculous when Biff / Buffy tries to insist on the “right” to smuggle his / her boston terrier / chihuahua into a restaurant to avoid eating alone.

So how do we define that “ridiculous” line without throwing the bichon out with the bathwater? The NYT article quoted trainers who work with seeing-eye-dogs or other working dogs; they might help provide a line. As for the idea that no-pet rules in buildings should be waived for the depressed or anxious, I am more skeptical. In this instance, I think the market would take care of the problem. There are buildings where pets are allowed. They may be more expensive, but that presumably internalizes the price of having an animal that could potentially cause damage to the apartment / property.

In any event, all this talk of animals is inspiring. The next two posts from me will carry a dog theme.

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If Pigs Had Wings

pigs.jpgThe Sunday New York Times has a story on people invoking the service animal protections of the Americans with Disabilities Act to bring animals that provide them with emotional support on airplanes and in to restaurants and other normally human-only settings.

In 2003 the Department of Transportation issued an administrative opinion that animals used to aid people with emotional ailments like depression or anxiety should be given the same access and privileges as animals helping people with physical disabilities like blindness or deafness.

Unsure of just what the law requires and fearful of being sued, airlines, presented with a letter from a medical professional attesting to an animal’s function, have made available cabin space for emotionally supportive goats, ducks, monkeys and miniature horses–in addition to more pedestrian cats and dogs. The gist of the Times article is that, on the one hand, lots of people seem to really need their animals around them at all times. On the other hand, an emotional supportive duck seems a long way from a seeing eye dog.

Then, of course, there are the other airline passengers or restaurant diners.

Some years ago, US Air allowed a woman and her daughter who invoked the ADA to bring into first class their 250 pound potbelly pig. When they made the reservation they apparently said they had a 13 pound “service animal.” For whatever reason US Air personnel at the airport decided they had to accommodate the beast.

The flying pig, seated between seats 1A and 1C, stayed quiet for most of the Seattle to Philadelphia flight, presumably providing silently its emotional support. But when the plane landed, the pig ran up the aisle, tried to enter the cockpit and then sat stubbornly in the galley until lured out with food.

No word on whether post-9/11 air marshals have training in handling disurptive farm animals aboard.