Mr. Lederman: I've published a number of pieces on Justice Thomas's views about affirmative action so I'll just refer you to the writings I list on my webpage.
Profesor Levinson: I don't share your interpretive posture. The words of a law, including the Constitution, are always a good place to start. I know some people think that words have no meaning, but I don't share that view. Most judges don't either. SDG Marty Lederman wrote: >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/ >> > -------------------------------------- Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
