I thought the one ground on which all agree is that the words of the Fourteenth Amendment do not provide any answers in Grutter and Gratz. Note, for instance, that in his Adarand concurrence Justice Thomas (understandably) does not rely upon the words of Fourteenth Amendment. Instead, in support of the breathtaking assertion that "[a]s far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged," he invokes "the principle that under our Constitution, the government may not make distinctions on the basis of race"; "the principle of inherent equality that underlies and infuses our Constitution"; the statement in the Declaration of Independence that "[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness"; and "the moral basis of the equal protection principle," which "reflects our Nation's understanding that such classifications ultimately have a destructive impact on the individual and our society."
Doesn't sound to me much like a "literal interpretation" of the Fourteenth Amendment, does it? Marty ----- Original Message ----- From: "Scott Gerber" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Tuesday, June 10, 2003 10:04 AM Subject: Desert Palace v. Costa > I'm not sure it's as easy as Mr. Lederman suggests. What I found > intriguing about Desert Palace was the entire Court's willingness to > sign on to Justice Thomas's literal interpretation of the words of a > law. Perhaps constitutional interpretation is different, though. > Perhaps the text is less important then (the 14th amendment says no > "person" may be denied the equal protection of the laws, which includes > nondiversity persons). The words of the Constitution are overlooked > more often than the words of other laws. That doesn't mean they should > be. > SDG > > > Marty Lederman wrote: > > > >OK, I'll bite. > > > >Assuming that Prof. Gerber is referring to title VI when he writes of > "the statute at issue in the Michigan admissions cases," then the > answer is "no": A unanimous decision that title VII does not include a > pulled-from-thin-air requirement that a plaintiff prove discrimination > by "direct" rather than circumstantial evidence (Costa) has no bearing > whatever on whether university preferences for minorities in order to > promote diversity is a form of "discriminat[ion]" barred by title VI > (especially in light of the fact -- see below -- that as they come to > the Court, Grutter/Gratz do not involve any issues of statutory > interpretation). > > > >Of course, I do hope that Costa has "relevance" for Grutter/Gratz in > the sense that the Court is willing to reject out-of-hand an > uncharacteristically implausible brief filed by the Solicitor General > on a civil rights matter . . . but that's only wishful thinking, and > remains to be seen. > > > >By the way, there is a "statute at issue" in Grutter/Gratz only in the > most nominal sense: If I recall correctly, no party is arguing that > title VI should impose any limitations on affirmative action more > severe than those imposed by the Equal Protection Clause, and therefore > no party is arguing (as did Stevens in Bakke) that the program is > unlawful under title VI notwithstanding whatever the constitutional > outcome would be. (Indeed, some of the libertarian folks supporting > the lawsuits would prefer that title VI is read to permit more -- not > less -- affirmative action "experimentation" than the Equal Protection > Clause would allow.) That's why the voluminous briefs in Grutter/Gratz > contain virtually no argument concerning the proper interpretation of > title VI. > > > >Marty Lederman > > > > > >----- Original Message ----- > >From: "Scott Gerber" <[EMAIL PROTECTED]> > >To: <[EMAIL PROTECTED]> > >Sent: Tuesday, June 10, 2003 9:13 AM > >Subject: Desert Palace v. Costa > > > > > >> I would be curious to know whether the list thinks that yesterday's > >> Supreme Court decision in the attached employment discrimination case > >> has any relevance for the Michigan admissions cases. The statute at > >> issue in the Michigan cases reads very much like the statute the Court > >> interpreted yesterday. Note that yesterday's decision was unanimous > >> and recall that Justice Steven's authored the statutory opinion in > >> Bakke. > >> > >> Best wishes, > >> Scott Gerber > >> Law College > >> Ohio Northern University > >> > >> > >> New York Times > >> June 10, 2003 > >> Justices Provide a Victory to One Category of Job-Bias Plaintiffs > >> By LINDA GREENHOUSE > >> > >> WASHINGTON, June 9 - A unanimous Supreme Court made it significantly > >> easier today for workers to win discrimination suits against their > >> employers in cases where race, sex, religion or national origin is one > >> factor among others in a dismissal or other adverse job action. > >> > >> Such cases of "mixed motive" - a legitimate reason combined with an > >> improper, discriminatory one - are so common as to be the norm in the > >> world of employment discrimination litigation. Congress addressed this > >> category of cases, among others, in 1991 when it amended Title VII of > >> the Civil Rights Act of 1964, the basic federal employment > >> discrimination law, to counter a series of pro-employer Supreme Court > >> decisions. > >> > >> A 1989 Supreme Court ruling had made it difficult for plaintiffs to > >> qualify for the favorable jury instructions that come with a > >> mixed-motive case, under which the employer has the burden of proving > >> that it would have made the same decision even in the absence of the > >> improper factor. The court said then that the plaintiff must prove by > >> direct, not circumstantial, evidence that discrimination had been "a > >> motivating factor" in the employer's action. > >> > >> Direct evidence requires the equivalent of a smoking gun. While it is > >> sometimes available to aggrieved employees, it often is not, > >> particularly in the nuanced and complex situations reflected in many > >> mixed-motive cases. > >> > >> In its 1991 legislation, Congress provided that an "unlawful employment > >> practice is established" when the plaintiff "demonstrates" that race or > >> any of the other prohibited categories "was a motivating factor for any > >> employment practice, even though other factors also motivated the > >> practice." > >> > >> Although Congress made no mention of a need for direct evidence, the > >> lower federal courts continued to require it, with the exception of the > >> United States Court of Appeals for the Ninth Circuit, in San Francisco. > >> In an opinion by Justice Clarence Thomas, the Supreme Court said today > >> that the Ninth Circuit was correct. > >> > >> "On its face," Justice Thomas said, "the statute does not mention, much > >> less require, that a plaintiff make a heightened showing through direct > >> evidence." > >> > >> "Our precedents make clear," he added, "that the starting point for our > >> analysis is the statutory text. And where, as here, the words of the > >> statute are unambiguous, the judicial inquiry is complete." > >> > >> Beyond the decision's impact on civil rights litigation, an effect that > >> could be substantial, the case was notable for the court's unanimous > >> rejection of the position argued by the Bush administration. The > >> administration had urged the court to adhere to its direct-evidence > >> requirement, arguing that Congress in 1991 intended to overturn other > >> aspects of the 1989 decision, Price Waterhouse v. Hopkins, but not the > >> evidentiary standard. > >> > >> Justice Sandra Day O'Connor, who formulated the direct-evidence > >> standard in her separate opinion in the 1989 case, wrote a concurring > >> opinion today. She said that while she still believed that her original > >> view accurately reflected what was then the state of the law, the > >> result today correctly reflected the change that Congress made in 1991. > >> > >> The case, Desert Palace v. Costa, No. 02-679, began as a suit against > >> the management of Caesars Palace Hotel and Casino in Las Vegas by > >> Catharina Costa, who worked there as a truck driver and heavy-equipment > >> operator. Ms. Costa was the only woman to work in the hotel's > >> warehouse. After she was dismissed, following a fight with another > >> employee that management stated as a cause, she sued for sex > >> discrimination and sexual harassment. The case was tried as a > >> mixed-motive case, and Ms. Costa won a jury award of $364,000 for back > >> pay and damages. > >> > >> The hotel then appealed on the ground that in the absence of direct > >> evidence, Ms. Costa was not entitled to the favorable mixed-motive jury > >> instructions. Instead, the hotel said, she should have been required to > >> meet a higher burden of proof by showing that the stated reason for her > >> dismissal was a pretext for discrimination. A three-judge panel of the > >> Ninth Circuit initially agreed, but a panel of 11 judges reheard the > >> case and, departing from the uniform view of the other appeals courts, > >> held that direct evidence was not necessary. > >> > >> The unanimity of the ruling today, along with the fact that the appeals > >> courts other than the Ninth Circuit were still requiring direct > >> evidence, "illustrates how much more conservative the lower courts are > >> these days than the Supreme Court," Eric Schnapper, a law professor at > >> the University of Washington who helped represent Ms. Costa, said in an > >> interview. He said that there were hundreds of similar cases in the > >> pipeline and that plaintiffs would benefit from the lowered threshold > >> the court set today. > >> > >> > >> -------------------------------------- > >> > >> Scott Gerber > >> Law College > >> Ohio Northern University > >> Ada, OH 45810 > >> 419-772-2219 > >> http://www.law.onu.edu/faculty/gerber/ > >> > > > > -------------------------------------- > > Scott Gerber > Law College > Ohio Northern University > Ada, OH 45810 > 419-772-2219 > http://www.law.onu.edu/faculty/gerber/ >
