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1999 Section 6: Civil Rights Institute of Bill of Rights Law at the William & Mary Law School
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Copyright c 1999 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview CIVIL RIGHTS
In This Section:
* LAST TERM: Rita L Saen., et al. v. Brenda Roe andAnna Doe etc., No. 98-97
Citi Traveling Back in Time; Privileges and Immunities Clause Unearthed to Strike Down State Welfare Law Thomas E. Baker ...... 306 The Supreme Court Exhumes the 14th Amendment's 'Privilegesor Immunities' Clause Clint Bolick ...... 309 * LAST TERM: James B. Hunt,Jr., et al. v. Martin Cromartie, et al., No. 98-85 Voting District Gets Some Leeway; Supreme Court Overturns Ruling in Racial Gerymander Case Linda Greenhouse ...... 312 Motive Counts; Clarence Thomas' Redistricting Guide Stuart Taylor Jr...... 314 * LAST TERM: Aurelia Davis, v. Monroe County Board of Education, et al., No. 97-843 Supreme Court Ruling Gives HarassedStudents a Way Out Jovan Johnson ...... 317 CourtAdopts Strict Test for HarassmentLiability Lynne Bernabei ...... 319 * LAST TERMi: Carole Kolstad v. American DentalAssociation,No. 98-208 Ruling Widens Criteriafor Bias Suits, Narrows Employers' liability Steve Lash ...... 323 New limits on Punitive Damages Imposed Debra S. Katz ...... 325 * LXST TERM: Karen Sutton and Kimbery Hinton v. UnitedAir lines, No. 97-1943 Justices Raise Bar to Quah as Disabled Joan Biskupic ...... 330 301 ParsingDisability Law; Court'sADA Rulings are Tough on Plaintffi Lisa I. Fried ...... 333 LAST TERM: Tommy Olmstead, et al v. LC., et al., No. 98-536 Justices Reject "Unnecessary Segregation" of Mentally Disabledat State Hospitals David G. Savage ...... 337 States Limited on InstitutionaliZation Linda Greenhouse ...... 339 NEW CASE: Rice v. Cayetano, No. 98-818 NARRATIVE SUMMARY, "Vote Here. HawaiiansONLY": Speial Purpose Elections by Race Matthew Curtis ...... 342 Synopsis and Question Presented ...... 344 HaroldF. Rice v. BenjaminJ. Cayetano, et al., 146 F.3d 1075 (9th Ci.) ...... 345 Supreme Court Roundup: Justices to Weigh Race Barrierin Hawaiian Voting Linda Greenhouse ...... 354 When Race Determines Who Gets the Vote Alex Salkever ...... 357 An American Race Law Michael Meyers ...... 359 Resurgent Racism in Hawaii? Bruce Fein ...... 361 302 Last Term: Rita L. SAENZ, Director, California Department of Social Services, et al., petitioners V. Brenda ROE and Anna DOE etc. No. 98-97 Supreme Court of the United States Decided May 17, 1999 CITIZENSHIP HAS ITS PRIVILEGES The Court Resurrects A Civil War-Era Ideal The New York Times Sunday, May 23, 1999 Linda Greenhouse IN constitutional law, as in geology, The 14th Amendment, adopted in things can look perfectly stable on the 1868 to ratify the outcome of the Civil surface -- until the tectonic plates shift War, says in its first paragraph, "No state underneath. shall make or enforce any law which shall abridge the privileges or immunities of As the Supreme Court term heads into citizens of the United States; nor shall any its final weeks, the question is whether state deprive any person of life, liberty, or such a shift may be underway. In its property, without due process of law; nor decision last week striking down deny to any person within its jurisdiction California's reduced welfare benefits for the equal protection of the laws." There is newcomers to the state, the Court relied historical evidence that the amendment's on a portion of the 14th Amendment that drafters regarded the privileges-or- forbids states to restrict the "privileges or immunities clause as more important than immunities" of American citizens. the much-invoked guarantees of due This is the long-neglected privileges- process and equal protection that it or-immunities clause, the sudden precedes in the text. resurrection of which, by a broad 7-to-2 But the clause was sent into early majority, was certainly one of the most eclipse by an 1873 Supreme Court surprising and possibly one of the most decision known as the Slaughter-House consequential constitutional developments cases, which held that the clause protected in years. 303 only the rights of national citizenship and undoubtedly achieved a release of placed no new obligations on the states. doctrinal tension much as an earthquake relieves pressure that builds up under the So by turning back to this long-bunied Earth's crust. language, the Court was taking at least a tentative step on a new path of The two-tiered welfare program constitutional analysis. While the ultimate challenged in this case was quite clearly destination is uncertain, it appeals to both unconstitutional under the Court's most conservatives, who see the clause as a new directly relevant precedent, a 1969 source for protection for property and decision called Shapiro v. Thompson that economic rights, and for weary liberals, invoked a constitutional "right to travel" who see it as a means for protecting to bar states from denying welfare individual rights without having to fight benefits during a newcomer's first year of endless battles over the meaning of due residency. process. Yet there was probably no member of And indeed, Justices across the the current Court completely at ease with ideological spectrum signed their names to the analytic method that produced this opinion, from John Paul Stevens, its Shapiro v. Thompson. That decision author and arguably the Court's most represented a kind of high-water mark of liberal member, to Antonin Scalia, one of the Warren Court's open-ended approach the most conservative. to constitutional analysis -- so much so Chief Justice Earl Warren himself While Justice Clarence Thomas that dissented from Justice William dissented, disagreeing that welfare was J. Brennan's majority opinion, which one of the historically protected privileges, candidly conceded that the right to travel he made clear his enthusiasm for was not anchored to any particular place reconsidering the privileges-or- in the Constitution. immunitiesclause in an "appropriate case." That left Chief Justice William H. "We have no occasion to ascribe the Rehnquist oddly isolated in his complaint source of this right to travel interstate to a that "the Court today breathes new life particular constitutional provision," into the previously dormant privileges or Justice Brennan wrote. It goes without immunities clause," an observation that saying that there are no Warren Court- the majority did not rebut. style liberals on the Court today. Briefs from a group of states and other The Justices who came together in the interested parties in the current case urged California welfare case, Saenz v. Roe, did the Justices simply to overrule the 1969 not necessarily do so for the same precedent. reasons, or with the same expectations of where this new opening might lead. The Instead, in Justice Stevens's practiced privileges-or-immunities clause has been hands, the right to travel did not disappear invisible for so long that there are few but morphed into a right of national recognizable signposts, and there were no citizenship that each state is obliged to concurring opinions by which individual honor and that, more to the point, has a members of the majority might have solid foundation in the Constitution's text. elaborated on the analysis. For the Court's moderate justices, the privileges-or-immunities clause offers a But at the least, to carry the geological comfort zone that permits them to defend analogy a step further, the opinion 304 individual rights while shedding the consensus has emerged that the Slaughter- baggage of liberal methodology. House decision of 1873 was based on a mistaken understanding of the intent of For conservatives, particularly those with libertarian leanings like Justice the drafters. Thomas, the appeal of the clause is even Now that the Court has spoken, clearer. There is no dispute that, as a however tentatively, that conversation will matter of history, the privileges the expand to a wider audience. Arguments amendment's drafters sought to protect based on privileges or immunities will be included the right to earn a living, enter developed in law review articles and into contracts and acquire and maintain presented to lower court judges, who in property free of government interference turn will write opinions that will provide - all aspects of the natural law philosophy more raw material for the Court, if the that inspired the signers of the Justices want to use it to move further Declaration of Independence. down the new path. THE privileges-or-immunities clause Just as the Court does not act in should be used to restore "the isolation from the rest of the legal system, fundamental connection between the cases on its docket do not exist in Constitution and its natural law isolation from one another. Between now foundations," Roger Pilon, director of and the end of next month, the Justices constitutional studies for the Cato will announce decisions in three cases that Institute, a libertarian policy group here, challenge the power of the Federal wrote in a law review article several Government with respect to the states. months ago. It would be surprising if the Court One result would be, Mr. Pilon argues, does not continue on its recent course of to raise the level of protection for shifting power away from Congress, a economic rights, like unrestricted land use, result the states are actively seeking. But which receive only minimal scrutiny under new power may come with a price if, as current constitutional analysis, to the level California learned on Monday, the Court of protection given to individual rights at the same time is placing new that under the current approach are obligations on the states to safeguard the deemed "fundamental." rights of all their citizens. In any event, it is clear that the Justices in a sense are simply catching up Copyright ©1999 The New York Times with a lively discussion that has been Company going on for some time among legal academics and constitutional historians. A broad, although by no means universal, 305 TRAVELING BACK IN TIME Privileges and Immunities Clause Unearthed to Strike Down State Welfare Law Legal Times Monday, July 12,1999 Thomas E. Baker The Supreme Court has amended the California first enacted the new- 14th Amendment. In Saenz v. Roe, 119 S. resident differential in 1992. Congress Ct. 1518 (1999), a seven-member majority authorized such differentials by states as revived the privileges and immunities part of a package of reforms in 1996 clause after 130 years of judicial intended to "end welfare as we know it." desuetude. The pseudonymous plaintiffs, Brenda Ratified in 1868, the 14th Amendment Roe and Anna Doe, sued the California is the most significant of all the Department of Social Services, amendments for protecting civil rights and department Director Rita Saenz, and other liberties. The constitutional couplets "due state officials, alleging that the new- process" and "equal protection" have resident differential burdened their generated volumes of annotations limning constitutional right to travel. state action, procedural due process, The leading prior precedent was substantive due process, fundamental Shapiro v. Thompson, 394 U.S. 618 rights, incorporation of the Bill of Rights, (1969), which struck down state laws that suspect classifications, privacy, etc. required one year of residency to qualify But the third clause was virtually read for welfare, but that opinion conflated the out of the 14th Amendment in the right to travel with the equal protection Slaughter-House Cases (1873), decided by clause. It is important to emphasize, a 5-4 vote just five years after ratification. however, that the Saenz majority did not Since then, the privileges and immunities simply rely on Shapiro. clause was used to invalidate state Instead, the majority revisited the legislation only one time, in 1935, and Slaughter-House Cases and other was overruled five years even that decision precedents to demarcate three distinct later. understandings of the right to travel: the So it was a "Constitution-bites-state" right to go from place to place; the right kind of headline when the Court invoked to be treated as a welcomed visitor; and the privileges and immunities clause in the right to become an equal, permanent Saenz to strike down a California welfare resident. Saenz involved the third code section requiring that families understanding: "the right of the newly moving from a state with lower benefits arrived citizen to the same privileges and would continue to receive the same immunities enjoyed by other citizens of amount of benefits provided by their the same State." The Court found that former state for their first year in this right of federal citizenship is California. guaranteed and protected by the privileges 306 and immunities clause in the 14th dissatisfied with the case law interpreting Amendment and may not be burdened by the due process and equal protection the states. clauses and stated that he would be "open to reevaluating" the privileges and Applying heightened scrutiny, the immunities clause "in an appropriate majority concluded that the discriminatory case." But he worried that the Saenz classification exacted a penalty on new majority and future majorities would residents that was not justified by the simply invent rights they liked, without state's interest to save money or Congress' doing the heavy lifting of historical desire to avoid a "race to the bottom" in analysis. Thomas surmised that the which states would lower benefits to avoid framers of the clause probably had in becoming "welfare magnets." One fact mind fundamental natural rights rooted in was particularly significant: an history and common law, but he was evenhanded, across-the- board reduction certain that they were not thinking about of about 72 cents per month for every public entitlements like welfare. recipient would have saved California the same amount of money as the new- What should we make of the resident differential. This was telling, since remarkable fact that all nine justices the impact could be dramatic for families expressed at least some enthusiasm for living at the margin who moved from one reviving the privileges and immunities of the lowest-paying states, like clause after 130 years? Is this holding a Mississippi ($144 per month), to harbinger of new substantive rights? What California ($673 per month), one of the sort of state laws might we expect to be most generous jurisdictions. challenged? Justice John Paul Stevens' majority Constitutional Adjustment opinion was joined by the Court's four Calls for reversing the Slaughter- former law professors--Antonin Scalia, House Cases have come from both sides Anthony Kennedy, Ruth Bader Ginsburg, of the ideological spectrum. Professors Breyer--as well as Justices and Stephen have always presumed that the decision Sandra Day O'Connor and David Souter. was wrong, although there has been little Chief Justice William Rehnquist and academic consensus about just what is a Justice Clarence Thomas wrote separate privilege and immunity of federal each other's opinion. dissents and joined citizenship. Indeed, the one thing that Rehnquist insisted that the plaintiffs scholars seem to agree on is that the were no longer traveling when they framers of the 14th Amendment expected became citizens of California, subject to the privileges and immunities clause to be state laws, including reasonable welfare far more significant than either the due regulations. His dissent reads like a poster process clause or the equal protection for the recent movie "The Mummy," with clause. Maybe now it will be. to the majority's theatrical references Challenges likely will be brought new life into" and efforts to "breathe against virtually all state residency "unearth from its tomb" the privileges requirements for programs and benefits. and immunities clause--characterizations This will not mean that a person can drive majority did not bother to rebut. the along the interstate highways collecting Thomas harkened back to the welfare checks at every state welcome intentions of the framers of the 14th center. But if the Court requires Amendment. He admitted that he was heightened scrutiny, the states will be hard 307 pressed to justify any requirement beyond rights, may also find Saenz useful. We can a simple determination that the person is expect institutional litigators to invoke this in fact a bona fide resident. As a practical holding to advocate economic liberty. matter, policing eligibility for state Heightened scrutiny under the privileges benefits and licensing commercial and immunities clause may cut across all activities will be harder. sorts of economic regulation on practicing an occupation and acquiring private We should expect that Saenz will lead a government-sponsored to a fundamental reconceptualization of property. It was all, that was at issue in the the 14th Amendment. Both the equal monopoly, after Cases. protection/fundamental rights cases and Slaughter-House the due process/incorporation of the Bill We can expect challenges to of Rights cases would make much more occupational licensing laws that sense as annotations of the privileges and discriminate against outsiders; the immunities clause. Even the dissenters interstate barriers to practicing law may be opined that this area of constitutional law vulnerable. It is not a sure bet that states lacks coherency and needs rethinking. still will be allowed to extract out-of-state tuition premiums at state universities. The For advocates on the left, Saenz may conservative Institute for Justice, which help them strengthen and broaden brief in Saenz, is already nontextual rights. Most important, the filed an amicus court challenges against cabaret right to privacy could be derived more preparing licensing in New York City and newsstand directly from the privileges and in Baltimore. The right to immunities clause than from elliptical regulations contract of the Lochner era may be discursives about penumbras and beneath the bandages of this mummy. unconvincing accounts of the history and tradition of ordered liberty. Perhaps the Whatever one thinks of judicial justices will find a synergy between the activism that reads rights into the clause and the Ninth Amendment's Constitution, judicial activism that reads textual expectation of rights beyond the rights out of the Constitution is far worse. four corners of the Constitution. What is more remarkable than the invalidation of a state law under the Libertarians will find in the privileges privileges and immunities clause is that for and immunities clause what Scalia once 130 years the Supreme Court ignored one mocked as "that Thoreauvian you-may- of the great clauses in the 14th do-what-you-like-so-long-as-it-does- not- Amendment. We will have to wait and see injure-someone-else' beau ideal." Barnes if the justices make up for lost time. v. Glen Theatre Inc., 501 U.S. 560 (1991)(Scalia, J., concurring). The clause Thomas E. Baker holds the James could be employed to protect the core Madison Chair in constitutional law and value of personal autonomy. If we serves as the director of the Constitutional imagine what Justice William Brennan Law Center at Drake University Law might have done with this clause in School, Des Moines, Iowa. support of human dignity, we can begin to appreciate its potential expansiveness. Copyright (1999 American Lawyer devotees On the right, contemporary Newspapers Group Inc. of John Locke, ever solicitous of property 308 THE SUPREME COURT EXHUMES THE 14TH AMENDMENT'S 'PRIVILEGES OR IMMUNITIES' CLAUSE Legal Times Monday, May 24,1999 Clint Bolick When I was studying for the bar in modem constitutional law, the Court all examination, the constitutional law but read the Privileges or Immunities instructor told the class there was only Clause out of the Constitution in the one thing we needed to know about the Slaughter-House Cases" in 1873. 14th Amendment's "privileges or That decision betrayed the high hopes immunities" clause: It was never the right of the amendment's framers, who answer to a bar exam question. intended the clause to remedy grievous Last Monday, the bar exam suddenly got civil rights violations and provide a tougher. durable bulwark for freedom. Following the Civil War, Southern states enacted Not surprisingly, the U.S. Supreme "black codes," designed to deprive former Court in Saenz v. Roe struck down a slaves of vital liberties such as freedom of California law that limited welfare benefits contract, property ownership, and the for new residents. But in the process, the right to pursue a chosen trade or Court did something remarkable- profession. "unearthing from its tomb," as dissenting Chief Justice William Rehnquist put it, the Just five years after the adoption of privileges or immunities clause that was the 14th Amendment in 1868, the clause buried in its infancy 126 years ago. The was eviscerated. By a 5-4 vote, rare in Saenz decision opens the door to fill a those days, the Court upheld a Louisiana previously empty constitutional vessel-- law that created a slaughterhouse and to advance the cause of economic monopoly in New Orleans and drove liberty. butchers out of business. The majority opinion by Justice Samuel Miller ruled That the privileges or immunities that the clause protected against state clause has lain dormant for so long is infringement only those rights that derive astounding. Among the 14th from national citizenship, such as habeas Amendment's trilogy of protections, the corpus and the right of access to navigable edict that "No State shall make or enforce waters. The economic rights asserted by any law which shall abridge the privileges the butchers were indeed "privileges or or immunities of citizens of the United immunities," the majority conceded, but States" appears first. The clause also only insofar as states might elect to provides the amendment's only protect them. substantive, rather than procedural, restraint on government power. Yet as The dissenters justifiably were Justice Clarence Thomas observed in his appalled. As construed by the majority, Saenz dissent, "unlike the Equal Justice Stephen Field declared, the clause Protection and Due Process Clauses, "was a vain and idle enactment, which which have assumed near-talismanic status accomplished nothing." By refusing to 309 acknowledge any significant restraint on regulatory barriers. We have won several state police power, Field lamented, "the cases under the equal protection and due right of free labor, one of the most sacred process clauses, but the legal terrain is and imprescriptible rights of man, is treacherous for economic liberty so long violated." Another dissenter, Justice Noah as Slaughter-House stands. Swayne, voiced hope that the The Court's Saenz decision consequences of the decision would unquestionably changes the equation, "prove less serious and far-reaching than though it was an odd case to embark upon the minority fear they will be." a jurisprudential journey to revive the Unfortunately, Slaughter-House privileges or immunities clause. caused all manner of mischief. When California's two-tiered welfare Adolph Plessy challenged a Jim Crow law payment regime, which limited new requiring segregated railway cars in Plessy residents during their first year to the level v. Ferguson (1896), Slaughter-House of benefits received in their former states, deprived him of his strongest argument: faced a tough challenge under past freedom of contract. Forced to rely on the precedents. In Shapiro v. Thompson equal protection clause, Plessy lost 8-1, (1969), for instance, the Court invalidated and "separate but equal" would receive durational residency requirements for judicial sanction for 58 years. welfare benefits as a violation of the "right Meanwhile, essential economic to travel." liberties were relegated to carte blanche As Justice John Paul Stevens "rational basis" review. With the privileges acknowledged in his majority opinion in or immunities clause buried, the Bill of Saenz, the right to travel "is not found in Rights was selectively and torturously the text of the Constitution" yet is "firmly applied to the states through the due embedded in our jurisprudence." In process clause. Shapiro, the Court derived the right to Calls for reversing Slaughter-House travel from the equal protection have spanned the ideological spectrum. guarantee. Thirteen years later in Zobel v. For instance, Professor Michael Kent Williams, Justice Sandra Day O'Connor Curtis of the Wake Forest University found the right to travel in Article IV, School of Law and the American Civil Section 2, which provides that the Liberties Union's Nadine Strossen believe "Citizens of each State shall be entitled to correctly that the privileges or immunities all Privileges and Immunities of Citizens clause provides a far more secure in the several States." foundation for the Bill of Rights than the Either of those constitutional bases due process clause. could have sufficed to invalidate the ECONOMIC LIBERTIES AT STAKE California welfare law. Nonetheless, the Saenz Court reached out to the privileges My own organization, the Institute for or immunities clause to find "an the only group whose Justice, is perhaps additional source of protection" for the core mission includes reviving the right to travel. Citing only Slaughter- privileges or immunities clause. In House, the Court stated that "it has always numerous cases, we have represented been common ground that this Clause start-up entrepreneurs in constitutional protects . . . the right to travel." While the challenges to occupational licensing laws, right to travel has been long established, transportation monopolies, and other Saenz is unique and remarkable because it 310 relied on the privileges or immunities Properly construed, the privileges or clause to strike down state legislation. immunities clause would require states to justify restraints In his dissent, Thomas criticized the on economic liberty by majority for failing to address the demonstrating that they are substantially governmental historical underpinnings of the privileges related to a legitimate in Slaughter- or immunities clause. Exploring the objective. As the dissenters that serve common law and Reconstruction-era House recognized, regulations origins of the privileges or immunities no purpose other than economic would be swept aside, while guarantee, he concluded that the term was protectionism designed to protect meant to encompass fundamental natural regulations reasonably safety would survive rights, but not public benefits. public health and scrutiny. While noting that he would "be open to reevaluating its meaning in an The Saenz Court has issued an to revisit a long-buried doctrine. appropriate case," Thomas warned that invitation of the 20th such an inquiry, if bereft of historical While the civil rights struggles analysis, could raise "the specter that the century have focused on giving tangible Privileges or Immunities Clause will meaning to the due process and equal to make become another convenient tool for protection clauses, it is time now inventing new rights." good on the first and most basic promise of the 14th Amendment: the guarantee Still, the fear of damaged cargo should that states shall not abridge the privileges not cause us to abandon the voyage to and immunities of citizens. revive the privileges or immunities clause. is litigation director at the Judicial activism that creates rights that do Clint Bolick Institute for Justice in Washington, not exist in the Constitution is bad, but D.C. His most recent book is Transformation: judicial activism that reads rights out of The Promise and Politics of the Constitution is even worse. The Empowerment (ICS Press, 1999). drafters of the 14th Amendment plainly intended to limit oppressive state action and protect fundamental rights. For more Copyright C 1999 American Lawyer than 130 years, particularly in the context Newspapers Group Inc. of property rights and economic liberty, that promise has largely gone unfulfilled. 311 Last Term: James B. HUNT, Jr., Governor of North Carolina, et al., petitioner V. Martin CROMARTIE, et al. No. 98-85 Supreme Court of the United States Decided May 17, 1999 VOTING DISTRICTS GET SOME LEEWAY Supreme Court Overturns Ruling in Racial Gerrymander Case Austin American-Statesman Tuesday, May 18, 1999 Linda Greenhouse WASHINGTON - Revisiting a The plaintiffs were allied with the much-disputed North Carolina white voters whose challenge to an earlier congressional district Monday, the and more heavily black version of the Supreme Court ruled with surprising same district led in 1993 to the Supreme unanimity that even a conscious Court's Shaw vs. Reno decision, which concentration of black voters did not opened the door to strict and -- until now automatically make a district -- invariably fatal judicial scrutiny of unconstitutional as long as the state's districts drawn as part of an effort to primary motivation in drawing the district enhance black political representation. might have been political rather than justice Clarence Thomas' decision for racial. the court Monday in no way disavowed The court overturned a judgment won Shaw vs. Reno or the four cases that last year by a group of white voters who followed it, striking down majority black challenged the latest version of North districts in Georgia and Texas as well as in Carolina's 12th Congressional District as North Carolina. Rather, Thomas said, an unconstitutional racial gerrymander. those cases had limits: Plaintiffs retain the The case now will go back to a special burden of proving that race was, three-judge federal district court in impermissibly, "the predominant factor" Raleigh with instructions to take account in drawing district lines, and lower courts of the state's evidence that it wanted to are not free to ignore, as this one did, create a district of loyal Democrats, many evidence of other permissible motivations. of whom happened to be black. 312 "A jurisdiction may engage in race among district line-drawers is not, by constitutional political gerrymandering, itself, enough to invalidate a district. even if it so happens that the most loyal Lower court judges misunderstand the Democrats happen to be black Democrats Supreme Court's recent precedents if they and even if the state were conscious of think the court has instructed them to that fact," Thomas said, adding, root out any use of race, Thomas said. that blacks constitute even a "Evidence While all nine justices agreed with the supermajority mi one congressional district decision, the four who consistently have while amounting to less than a plurality in dissented from the recent redistricting a neighboring district will not, by itself, cases did not sign Thomas' opinion, suffice to prove that a jurisdiction was instead filing a separate opinion to motivated by race in drawing its district emphasize what they said was the lines when the evidence also shows a high weakness of the evidence for a racial between race and party correlation gerrymander in this case. Justice John Paul preference." Stevens wrote the separate opinion, which The question of motivation is a fact to Justices David Souter, Ruth Bader be proved at trial, he said, not a Ginsburg and Stephen Breyer also signed. conclusion to be assumed by a court at The practical effect of the ruling the summary judgment stage, as happened Monday may be to give states "very in this case. Thomas emphasized that the significant breathing room" as they court was taking no position on the approach the next round of redistricting, ultimate question of the 12th District's Walter Dellinger, who argued the case for constitutionality. He said there was North Carolina, said Monday. Dellinger, evidence of both a political motive and a the former acting solicitor general, motive for the district, which is now racial handled the case as a private citizen and 47 percent black. North Carolina resident. 9-0 decision was in that Although the Since there tends to be a strong on the sense inconclusive, its importance correlation between race and voting of eve of the next national round patterns in many areas, the court's redistricting could reach considerably approach may well permit the incumbent a beyond the fate of this particular district, politicians who draw district lines to that links thin, 90-mile-long squiggle achieve two goals at once: concentrate in west-central centers of black population predictable Democratic and Republican North Carolina. voters in separate districts while at the Monday's decision, Hunt vs. same time ensuring continued black Cromartie, was essentially a set of representation from certain areas. instructions to the lower court judges who will be hearing similar challenges after the 2000 census. Copyright © 1999 The Austin American- Statesman Thomas appeared to go out of his way to make clear that simple consciousness of 313 MOTIVE COUNTS Clarence Thomas'Redistricting Guide The Connecticut Law Tribune Monday, May 24,1999 Stuart Taylor Jr. While racial gerrymandering of Now these five justices have joined election districts is unconstitutional, race- their four more-liberal colleagues in conscious political gerrymandering is not. specifying that the Court will allow states That is the sensible message of the to engage in political gerrymandering even when the results include heavily black or Supreme Court's May 17 decision holding unanimously that the boundaries of a Hispanic districts. North Carolina congressional district had The specific issue before the justices not been proven unconstitutional -- not was whether a three-judge lower court in yet, at least -- and sending the case back to Raleigh had been correct in awarding a lower court for further proceedings. summary judgment, without having heard detailed evidence on the issue of motive, Justice Clarence Thomas' brief opinion (joined by four other justices) in to white voter- plaintiffs who challenged the case of Hunt v. Cromartie may help as an unconstitutional racial gerrymander steer the Court's history of conflicted and the current version of North Carolina's confusing jurisprudence in this area much-litigated 12th Congressional toward a coherent resting place. District. That district is now 47 percent black. The decision at least gives states better guidance on how to get through the The Court was unanimous in reversing decennial redistricting after next year's the lower court and sending the case back, census without running afoul of the asking the lower court to take more evidence courts. And it represents the clearest on whether the legislature's primary acknowledgment so far by the Court's motive had been to create a strong conservatives that the redistricting process Democratic district (surrounded by Republican cannot be made completely colorblind, districts), as the state claimed, or to concentrate because the politicians who draw the lines black voting strength, as the white plaintiffs argued. cannot help but be aware of racial voting patterns. Examining Motives While stressing In past decisions, Thomas and the that there was evidence of both a political four other conservative justices have and a racial motive, Justice Thomas struck down the blatant racial spelled out the implications of earlier gerrymandering that the Justice decisions that gerrymandering is unconstitutional Department for years pressured states to only if race is the "predominant" motive: adopt in order to create as many majority- black and majority-Hispanic districts as A jurisdiction may engage in possible. constitutional political gerrymandering, even if it so happens that the most loyal 314 Democrats happen to be black Democrats Hispanic politicians seeking safe seats, and even if the state were conscious of with conservative white Republicans who that fact. ... Evidence that blacks stood to win more seats if minority voters constitute even a supermajonity in one were packed into a few districts. district while amounting to congressional Under both Presidents George Bush in a neighboring less than a plurality and Bill Clinton, the Justice Department will not, by itself, suffice to prove district also pushed states hard to adopt race- that a jurisdiction was motivated by race based districting. Powerful objections - in drawing its district lines, when the that this cure aggravates the underlying evidence also shows a high correlation disease of racial polarization and racial- between race and party preference. bloc voting; that minority voters have less The four more-liberal justices, who overall clout in both Congress and state have dissented from the earlier decisions legislatures when they are packed into a holding that racial gerrymandering violates few districts; and more -- were swept the Constitution, did not sign the Thomas aside. opinion. Rather, they joined in a Then, in 1993, the Supreme Court's concurrence by Justice John Paul Stevens five conservatives started pushing back. stressing the evidence that this was a political gerrymander, not a racial one. In Shaw v. Reno, they denounced efforts to "balkanize us into competing The fate of North Carolina's 12th racial factions," and evinced visceral District -- represented in the House by distaste for the "bizarre," serpentine shape Melvin Watt, a black Democrat -- remains that had been drawn to give an earlier uncertain. But Justice Thomas' language version of North Carolina's 12th will help states figure out how to stay on Congressional District a 53 percent black the constitutional side of the line in future majority. redistrictings. This, in turn, may portend a gradual calming of the legal and political Justice Sandra Day O'Connor held for turmoil over racial gerrymandering that the Court that it was presumptively has raged at least since the 1982 unconstitutional to create majority-black amendments to the Voting Rights Act. or majority-Hispanic districts if their shapes were so strange as to evidence an 1982 legislation was designed to That intent "to separate voters into different Hispanic voters, who had give black and districts on the basis of race." In sending often been submerged in majority-white the case back to the lower court, more power to elect districts, O'Connor suggested that such a district representatives of their choice. As could be justified only if, in some rare by the (then more interpreted in 1986 case, it was an indispensable remedy for a Supreme Court in Thornburg v. liberal) violation of the Voting Rights Act. Gingles, the 1982 amendments were widely viewed as requiring the creation of The Court's new rule against racial as many majority-black and majority- gerrymandering put its reading of the Hispanic districts as possible, often by Constitution on a collision course with its drawing districts contorted into odd reading of the Voting Rights Act in forms. Gingles, as that decision had been construed by the Justice Department and Such race-based districting was many lower courts. pushed by a marriage of convenience that united civil rights groups and black and 315 The justices followed through in 1995 distaste for the use of overt racial and 1996 with three 5-4 decisions striking gerrymandering to achieve that result. majority-black districts as down Because African-Americans are unconstitutional racial gerrymanders. In among the most loyal of Democrats, the the first of them, Miller v. Georgia, Justice elected officials who draw district lines Anthony Kennedy's opinion denounced may often find that the most efficient "the Justice Department's implicit form of political gerrymandering -- which command that states engage in is to aggregate precincts with the most presumptively unconstitutional race-based heavily Democratic (or Republican) voting districting" in the name of the Voting patterns -- will also create sufficient Rights Act. Kennedy held that judges concentrations of black voters to help should subject voting districts to "strict elect their chosen candidates, many of scrutiny" whenever "race was the whom will also be black. predominant factor" in drawing them. This does not mean that race- Neither Miller nor the two 1996 conscious partisan gerrymandering is or decisions provided much practical should be mere camouflage for racial guidance for states that want to draw gerrymandering. A districting plan districts without violating either the motivated mainly by political rather than Voting Rights Act or the Court's racial considerations will tend to produce constitutional ban on racial more racially integrated, less balkanized gerrymandering. Hunt v. Cromartie districts, often with large black (or more predictability to the brings a bit Hispanic) pluralities rather than majorities. scene. This will foster the building of cross-racial A Path to Accommodation? coalitions -- not a bad thing. Such political gerrymandering is also less likely to send This is not to say that Justice Thomas' voters the noxious message that they are opinion entirely ends the confusion, or supposed to cast their ballots along racial that it portends the emergence of lines. consensus among the Court's conservatives and liberals. But this small The ultimate goal should be to ensure step toward clarity could point toward an that black and Hispanic voters have a fair eventual withering away of the racial chance of electing their chosen candidates gerrymandering litigation that has so without resorting to racial gerrymanders. roiled the courts and the country since As more and more black and Hispanic 1993. candidates win elections in majority-white districts, that goal seems ever more This is so in part because the Thomas achievable. Hunt v. Cromartie brings it opinion implicitly suggests a way of closer still. accommodating liberals' desire to see significant numbers of black and Hispanic candidates elected with conservatives' Copyright 0 1999 American Lawyer Newspapers Group, Inc. 316 Last Tenn: Aurelia DAVIS, petitioner, V. MONROE COUNTY BOARD OF EDUCATION, et al. No. 97-843 Supreme Court of the United States Decided May 24, 1999 SUPREME COURT RULING GIVES HARASSED STUDENTS A WAY OUT The Virginian-Pilot (Norfolk, VA) Friday,July 23,1999 Jovan Johnson, 757 Correspondent SHE SAYS he pinned her against a The case began in 1992 when a wall. She remembers him licking her neck student in Monroe County, Md., reported and biting her on the side of her face. She incidents of harassment from a fifth-grade remembers him putting his hand on her classmate. LaShonda Davis says school crotch. officials did nothing to stop the abuse, which continued daily for five months. But she doesn't remember a teacher, She says she even considered suicide. school administrator or guidance counselor stepping in to stop the incident. After her complaints were dismissed by the school board, LaShonda's mother The views of this Cox High School filed suit in circuit court. The case then rising senior reflect those of other made its way to the Supreme Court, where Hampton Roads students who feel justices ruled in favor of LaShonda, now a schools are not doing enough to prevent teen-ager. or remedy sexual harassment in schools. Hampton Roads students applaud the However, thanks to a recent Supreme ruling. Court ruling, students have a recourse. "Schools are required to provide a In a 5-4 decision, the High Court certain amount of protection or haven for ruled that because schools have custodial a student, and this school in particular authority over students, a school that neglected to do this," said Jeff Bozman, a receives federal funds can be liable for rising junior at Norfolk Collegiate. damages if nothing is done to stop reported incidents of harassment. 317 Some area students say they need to "Students see sexual harassment become more familiar with sexual happening in the hallways and classrooms, harassment policy so they will be able to but they are afraid of turning students in, make better decisions. because they believe they will be called troublemakers or that students will take Sexual harassment in schools is illegal, revenge on them," a form of sexual discrimination under Guy says. "The problem is that our youth live in a culture 1972's Title IX decision. Title IX was where ridicule and intimidation are exercised in LaShonda's case. acceptable to be considered 'cool.'" Students understand the importance She advises students to be more of the ruling and see it as fair. direct with teachers and parents. But teachers Local school divisions say they take must be on the lookout, as well. sexual harassment seriously. Some include "There are things teachers should their policies in student handbooks. notice," Guy says, "such as skipping, "Shortly after the decision, we falling grades, sleeping in class, and loss of reiterated to our principals and staff our interest in activities. Also, decreased sexual harassment policy, and that feelings of competence and confidence, throughout the year, administrators on all increased anger and frustration, a drop in levels are reviewing its policy," said work attitude and productivity are other Norfolk School Board chairwoman Anita signs." Poston. Representatives from RESPONSE Norfolk Senior Deputy City Attorney visit schools, churches and community Daniel R. Hagemeister says, centers. "Administrators, counselors, teachers, But groups like RESPONSE can't do faculty members always take these things everything, Guy says. Teachers have to be seriously." trained to handle sexual harassment. Hagemeister added he will be And they need to act as soon as involved with a forum on sexual possible. harassment scheduled for October in Norfolk. "Without a system of specially trained counselors in place, the sexual harassment He says Norfolk schools are policies of schools in Hampton Roads committed to preventing sexual render themselves ineffective," she says. harassment, and when an incident does occur, "punitive actions are swift and forthcoming. It is not tolerated." Copyright ( 1999 Landmark Yvette Guy, a counselor for the sexual Communications, Inc. assault counseling group RESPONSE, says she has noticed a disconnect between students and teachers. 318 COURT ADOPTS STRICT TEST FOR HARASSMENT LIABILITY Legal Times Monday, July 12,1999 Lynne Bemabei Davis v. Monroe County Board of Title IX prohibits students from being Education, 119 S. Ct. 1661 (1999), saw a excluded from participation in, being Supreme Court engaged in high-handed denied the benefits of, or being subjected policy making and legislative efforts once to discrimination under programs or again. In defining when sexual harassment activities receiving federal funds. Aurelia of students by other students violates Title Davis alleged that the school's deliberate IX of the Education Amendments of indifference to a male student's persistent 1972, the Court created a new and sexual advances toward her fifth-grade onerous standard of liability. daughter LaShonda created an Last term, in Gebser v. Lago Vista intimidating, hostile, offensive, and Independent School District, 524 U.S. 274 abusive school environment that violated (1998), the Court had held that a student Title IX. According to the complaint, a sexually harassed by a teacher could male classmate attempted to touch her recover damages against a school district daughter's breasts and genital area, made only if a school official with authority to vulgar comments, and continuously acted take corrective action was notified of the in an offensive and sexually suggestive harassment and if the official's response manner toward LaShonda and other amounted to "deliberate indifference." female students. The school officials to Building on Gebser's deliberate whom these incidents were reported indifference standard, the 5-4 majority in allegedly did nothing to stop them. It was Davis set an exceedingly high standard for only after the boy was charged with and students sexually harassed by other pleaded guilty to sexual battery that the students to state an actionable claim harassment ended. Both the U.S. District against a school district under Title IX. Court and the U.S. Court of Appeals for the 11th Circuit, sitting en banc, found The standard is so high that it is that such student-on-student harassment puzzling why the dissent decries the could not provide the basis for damages majority opinion as threatening schools under Title IX. "beset with litigation from every side." It is much more likely that Davis will have The Supreme Court reversed, holding the opposite effect-- reducing the number that a damages action for student-on- of federal suits brought by sexually student harassment may lie under Title IX harassed or abused students. Indeed, Julie provided that certain conditions are met. Underwood, general counsel for the The first condition is that the school must National School Board, echoed the be found to be "deliberately indifferent" sentiments expressed by many school to the harassment. The Court held that lawyers that it would be "the rare occasion the school had to be on actual notice of the harassment, when a school board is found liable in the exercise substantial future." control over both the harasser and the context in which the known harassment 319 occurred, and respond to the harassment dismiss cases of highly disturbing in a clearly unreasonable manner given the harassment on the ground that the known circumstances. The second conduct was directed against one student requirement is that the plaintiff must only and thus was not pervasive, or on the show that the harassment is "so severe, ground that the harassment was not pervasive, and objectively offensive, and sufficiently severe because the student that it so undermines and detracts from persevered under the pressure, attending the victims' educational experience, that class every day. the victims are effectively denied equal It is hard to understand why the access to an institution's resources and protections afforded to the most opportunities." vulnerable of our citizens--children in RAISING THE BAR school, who cannot simply opt to go elsewhere-- should be so much weaker This standard for demonstrating that than for adults, who in many cases can misconduct in the school context under choose to leave a hostile and dangerous Tide IX rises to the level of actionable work environment. sexual harassment is much higher than the standard in the employment context As noted, the Davis Court borrowed under Tide VII. In Meritor Savings Bank, from Gebser by holding that the school FSB v. Vinson, 477 U.S. 57 (1986), and must have actual notice of the harassment Harris v. Forklift Systems Inc., 510 U.S. and be "deliberately indifferent" to it. In 17 (1993), the Court held that an the process of justifying this deliberate employer violates Tide VII by creating or indifference standard for teacher-on- tolerating a sexually hostile work student harassment, the Gebser Court environment, defined as an environment analogized the standard to the one used that is intimidating, hostile, or offensive by the Department of Education in on the basis of sex, and that is sufficiently administratively enforcing Tide IX's severe or pervasive to alter an employee's requirements. Under that standard, an working conditions. But under Davis, the administrative agency may not initiate misconduct must be severe and pervasive enforcement proceedings against a and offensive, and it must rise to a high recipient of federal funds until it has enough level that it effectively denies a advised the appropriate person of the student equal access to educational failure to comply with the requirement opportunities. While Meritor and Harris and determined that compliance could not read these terms in the disjunctive, Davis be secured voluntarily. reads them in the conjunctive. The Gebser Court concluded that the The Davis Court expressly held that it implied damages remedy for Tide IX was not "necessary to show physical should be judicially developed along the exclusion to demonstrate that students same lines. The most closely analogous have been deprived by the action of standard would be deliberate indifference, another student . .. of an educational which the Court reasoned was the judicial opportunity on the basis of sex." Taken to equivalent of "an official decision by the its logical conclusion, however, the recipient not to remedy the violation." decision does force a plaintiff to endure a The Court ostensibly supported this of harassment to show significant amount high standard by reference to the she was denied equal access to the that deliberate indifference standard for school's resources. Courts could easily Section 1983 claims that allege that 320 municipalities failed to prevent a Supreme Court, in a more recent Section deprivation of federal rights. Of course, 1983 case, did not resolve the that standard was itself judicially proliferation or differentiation of these developed, without reference to the standards, simply stating that deliberate statutory language of Section 1983, for the indifference "is a stringent standard of express purpose of limiting municipal fault, requiring proof that a municipal liability. actor disregarded a known or obvious consequence of his action." Board of In addition, it is likely that the Gebser County Commissioners v. Brown, 520 Court actually derived the deliberate U.S. 397 (1997). indifference standard from an opinion by Chief Judge Richard Posner of the 7th It is difficult to reconcile Gebser and Circuit, dissenting from a denial of Davis with Kolstad v. American Dental rehearing en banc in Doe v. University of Association, 67 U.S.L.W. 4552 (June 22, Illinois, 138 F.3d 653 (7th Cir. 1998). In 1999), decided by the Court only a month an opinion issued just three months after Davis. Kolstad says that punitive before Gebser, the 7th Circuit found that damages under Title VII require a student-on- student sexual harassment showing of "malice or reckless violated Title IX under certain indifference"--not the "deliberate circumstances. Posner recommended the indifference" now required under Title IX adoption of a deliberate indifference to simply prove liability. Yet there is little standard of liability because it "would give in Title IX to justify this more onerous schools substantial protection against standard. being sued for failing to guess right about Stripped of its dicta, the Supreme proper management of sexual and the Court's adoption of the deliberate nastiness among their charges." related indifference standard in Gebser and Davis Posner admitted that Title IX does seems nothing short of judicial legislation not contain this or any other standard of of an extremely high hurdle for students liability. All the cases cited by the judge to trying to invoke federal civil rights support his importation of the deliberate protection for sexual harassment. The indifference standard into Title IX Court has provided less protection than concerned Section 1983 claims, including that recommended by the Department of those against public school districts, not Education's Office of Civil Rights in its Title IX claims. 1997 "Sexual Harassment Guidance," which said that student-on-student One threshold question left harassment falls within the scope of Title unanswered is whether this deliberate IX. The Court has also provided less indifference standard differs from protection than did the three circuits that "reckless indifference." The 3rd Circuit previously held student-on-student sexual considers deliberate indifference to be harassment actionable under Title IX. synonymous with reckless indifference, Ironically, in cutting back the protection reckless disregard, and gross negligence, afforded students in public schools, the v. Tedder, 95 F.3d 1199 (3d Cir. Kneipp Court has engaged in the very judicial 1996), while the 9th Circuit rates activism it has long criticized in lower deliberate indifference as a higher courts that vigorously enforce the civil of liability than reckless standard rights laws. indifference and gross negligence, L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996). The 321 Lynne Bernabei is a partner at D.C.'s Gena Wiltsek for her assistance with this Bernabei & Katz specializing in article. employment discrimination matters. The author wishes to thank summer associate Copyright C1999 American Lawyer Newspapers Group Inc. 322 Last Term: Carole KOLSTAD, petitioner V. AMERICAN DENTAL ASSOCIATION No. 98-208 Supreme Court of the United States Decided, June 22, 1999 RULING WIDENS CRITERIA FOR BIAS SUITS, NARROWS EMPLOYERS' LIABILITY The Houston Chronicle Wednesday, June 23,1999 Steve Lash, Houston Chronicle Washington Bureau WASHINGTON - The Supreme against them, a violation of law that could Court, in a ruling that pleased neither entitle the employees to punitive damages. management nor labor, made it easier The justices held that bias victims need Tuesday both for companies to escape only show that an employer recklessly or liability for intentional discrimination and maliciously violated Title VII. for women and minorities to bring A lower federal court had placed a lawsuits alleging deliberate bias in the much greater burden on discrimination workplace. victims, requiring them to prove that the In a 5-4 decision, the high court said violation of law was "egregious" before employers can avoid being assessed they could collect punitive damages. punitive damages in bias cases if they can Justice Sandra Day O'Connor, writing show they made good-faith efforts to for the majority on the issue of what comply with Title VII of the 1964 Civil employers must do, said a company that Rights Act, which prohibits job makes good-faith efforts to comply with discrimination. These efforts could the law cannot be found to have acted include having a strong company policy with malice or reckless indifference to the prohibiting harassment and bias, the court statute. Permitting employers to be held said. liable despite strong efforts to comply As it was advising employers on with Title VII would discourage them avoiding liability, the court was relaxing from going to the effort and expense of the burden on workers seeking to prove educating their employees, she said. their employers intentionally discriminated 323 She was joined in that part of the of O'Connor's opinion were Stevens, opinion by Chief Justice William H. Scalia, Kennedy, Souter, Ginsburg and Rehnquist, Antonin Scalia, Anthony M. Breyer. Kennedy and Clarence Thomas. Rehnquist, joined by Thomas, The dissenters on the issue were dissented, stating that employees are Justices John Paul Stevens, David H. entitled to punitive damages under the law Souter, Ruth Bader Ginsburg and Stephen "only for the worst cases of intentional G. Breyer. discrimination." O'Connor gained the support of six With its decision, the high court other justices for the part of her opinion revived lobbyist Carole Kolstad's effort to calling for juries to award punitive recover punitive damages from her damages if they find that an employer employer, the American Dental acted "with malice or with reckless Association. A U.S. district court jury in indifference" to an employee's rights Washington, D.C., found the employer under the law. That proof standard, intentionally discriminated against Kolstad addressing the mental state of the when it promoted a man over her to be employer, is clearly stated in the statute director of legislative policy. and is easier to prove than the district court's more onerous demand that employees show the employer acted Copyright (1999 The Houston Chronicle egregiously, she said. Joining that portion Publishing Company 324 NEW LIMITS ON PUNITIVE DAMAGES IMPOSED Legal Times Monday, July 12,1999 Debra S. Katz Ignoring the clear constitutional illegal' to discriminate intentionally." In mandate to avoid judicial legislation, the providing for punitive damages under Supreme Court ended this term by Title VII of the Civil Rights Act of 1964, essentially amending statutes that attack Congress sent a clear signal it was serious discrimination. The Court acted to protect about ending job discrimination and that employers from punitive damages liability one way to do this was to impose financial in Kolstad v. American Dental penalties that would make employers Association, 67 U.S.L.W. 4552 (June 22, think twice. 1999), and public schools from liability in But now, instead of reading the all but the most extreme cases in Davis v. express language of Section 1981a to Monroe County Board of Education, 119 permit punitive damages when a S. Ct. 1661 (May 24, 1999). (See nongovernmental employer discriminates accompanying article.) While paying lip "with malice or with reckless indifference service to expanding the rights of the to the federally protected rights of an the Court dredged safe harbors aggrieved, aggrieved individual," the Court has found nowhere in either of the laws at supplanted its own policy-making Kolstad, the creation of a "good issue. In judgment. It has adopted extra-statutory galling given faith" standard is particularly standards to make punitive damages that neither party addressed the question unavailable where an employer can American Dental during the litigation, the demonstrate that discrimination by Association expressly disavowed that the managerial agents was "contrary to the question was before the Court, and the employer's good-faith efforts to comply facts of the case did not present a basis on with Title VII.' " which to create such a defense. After hearing seven days of testimony Why then is the Court's majority so in Kolstad, the jury concluded that the willing to forget the words of Justice American Dental Association (ADA) had Louis Brandeis that "to supply omissions intentionally discriminated against Carole transcends the judicial function"? The Kolstad on the basis of her gender by answer is apparent: The majority is denying her a promotion. The judge unwilling to accept Congress' considered refused to instruct the jury on punitive judgment that punitive damages are damages, even though the evidence necessary to strengthen employee rights demonstrated that the ADA's violation of and aggressively deter employer violations. Title VII was willful. Specifically, the In passing the Civil Rights Act of evidence indicated that Kolstad was the 1991, Congress was clearly frustrated that more qualified of two job candidates, and discrimination continued even though that the decision-makers, who were senior "virtually everyone in America now executives, exhibited animus toward understands that it is both wrong 'and women by telling sexually offensive jokes 325 in staff meetings and in one-on-one rehearing en banc, a narrowly divided sessions with Kolstad and by referring to D.C. Circuit turned around and sustained professional women in such derogatory the rejection of the punitive damages terms as "bitch" and "battle-axe." claim, holding that "before the question of punitive damages The evidence further supported an can go to the jury, the evidence of the defendant's culpability inference that the executives not only must exceed what is needed to show deliberately refused to consider Kolstad intentional discrimination." The court said fairly for the promotion, but also that a defendant must be shown to have manipulated the job requirements and engaged in "egregious misconduct" before conducted a "sham" selection procedure a jury would be permitted to consider to conceal their misconduct. For example, punitive damages. the evidence demonstrated that the ADA groomed the preselected male candidate The Supreme Court granted certiorari and that the decision-makers interviewed to resolve a conflict among the circuit only that man for the position. Kolstad courts concerning the standard of conduct also adduced evidence showing that needed to permit a request for punitive women were seriously underrepresented damages to go to the jury. in the ADA's upper ranks. In a 7-2 decision, the Court rejected Finally, the court prevented Kolstad the "egregious misconduct" standard and from offering evidence concerning the held that the "malice or reckless ADA's prior litigation of a gender- indifference" standard focuses on the discrimination class action. The resulting defendant's state of mind--not the degree consent decree in that case expressly of its misconduct. To be liable in punitive forbade the preselection of a candidate in damages, a defendant must be shown to a promotion setting. have discriminated "in the face of a perceived risk that its actions will violate The ADA put on no evidence that its federal law." The Court noted that while two decision-makers were ignorant of egregious or outrageous acts support an Title VII's requirements, that they had inference of the requisite "evil motive," violated an internal equal employment the act in question need not have some policy instituted in good faith, or that they independently egregious quality to justify had any good-faith reason for believing punitive damages. that being a man was a legitimate requirement for the job. Rather, as Justice The Court noted that "there will be John Paul Stevens noted in his separate circumstances where intentional opinion, the ADA resorted to false, discrimination does not give rise to pretextual explanations for its refusal to punitive damages liability." Where an promote Kolstad. employer is "simply unaware of the relevant prohibition" because the Standards Deviation underlying theory of discrimination is A panel of the U.S. Court of Appeals "novel or otherwise poorly recognized," for the D.C. Circuit reversed the lower or where an employer "discriminates with court's decision denying a punitive the distinct belief that its discrimination is damages instruction and rejected the lawful" because it satisfies a statutory ADA's assertion that punitive damages are exception to liability, an employer will available under Title VII only in escape punitive damages. "extraordinarily egregious" cases. But on 326 Not satisfied with giving employers for employers to implement anti- this escape hatch, the Court by a 5-4 discrimination programs." majority created out of whole cloth yet Endorsing the amicus argument of the another limitation on punitive damages. While the statute has no such business-sponsored Equal Employment requirement, Kolstad calls for an Advisory Council, the Court reasoned that aggrieved plaintiff not only to "such a rule would likely exacerbate concerns among employers that demonstrate that the employer acted with Section 1981a's malice 'and reckless malice or reckless indifference to her indifference' standard penalizes those employers federally protected rights, but also to offer who educate evidence to "impute liability for punitive themselves and their employees damages" to the employer. on Title VII's prohibitions." The majority observed that "dissuading employers from After acknowledging that, "in express implementing programs or policies to terms, Congress has directed federal prevent discrimination in the workplace is courts to interpret Title VII based on directly contrary to the purposes agency principles," the Court refused to underlying Title VII." adopt common law principles or the After condemning the Restatement (Second) of Agency or the "perverse incentives Restatement (Second) of Torts. These that the Restatement's scope of provide that punitive damages are employment rules create," the Court said properly awarded against a principal it was "compelled to modify these because of an agent's act if: (1) the principles to avoid undermining the principal authorized the doing and objectives underlying Title VII." It held: "In a punitive manner of the act; (2) the agent was unfit, damages context, an and the principal was reckless in employer may not be vicariously liable for employing him; (3) the agent was the discriminatory employment decisions of managerial employed in a managerial capacity and agents where these decisions are was acting in the scope of employment; or contrary to the employer's (4) the principal or his managerial agent good-faith efforts to comply with Title VII.' ratified or approved the act. " Thus, regardless of the intentional discrimination perpetuated, the egregious Noting that the Restatement of nature of the offense, or the harm caused, Agency provides that even intentional an employer that has undertaken "good torts are within the scope of employment faith" efforts at Title VII compliance if the conduct "is the kind the agent is thereby "demonstrates that it never acted employed to perform," "occurs in reckless disregard of federally protected substantially within the authorized time rights." and space limits," and "is actuated, at least In Good in part, by a purpose to serve" the Faith employer, the Court--on strictly policy The Court cited D.C. Circuit Judge grounds--rejected application of such a David Tatel's en banc dissent in support standard. It stated: "On this view, even an of its good-faith defense. Notably, Tatel employer who makes every effort to referenced objective standards for an comply with Title VII would be held liable employer to meet in order to avoid for the discriminatory acts of agents acting punitive damages liability. He stated that in a managerial capacity.' " This, the Court an employer could properly argue that: concluded, "would reduce the incentive 327 it should not have to pay punitive defeat an employer's good-faith defense to damages because it had undertaken punitive damages. Plaintiffs will need to good faith efforts to comply with take comprehensive discovery about the Title VII--for example, by hiring employer's reasons for promulgating staff and managers sensitive to Title EEO policies and its bona fides in VII responsibilities, by requiring implementing and enforcing them. For effective EEO training, or by example, in Cadena v. The Pacesetter developing and using objective Corp., 30 F. Supp. 2d 1333 (D. Kan. hiring and promotion standards. 1998), the court found that while the employer's sexual harassment policy The Kolstad decision thus seems to looked reasonable, related memorandums indicate that the good-faith exemption is revealed a disdain for the 1991 Civil an affirmative defense for which the Rights Act and "mocked the right of employer bears the burden of proof, akin female employees to be free from sexual to that established in Burlington harassment." Industries Inc. v. Ellerth, 524 U.S. 742 An employer's recklessness may (1998), and Faragher v. Boca Raton, 524 certainly be proven by expressions of U.S. 775 (1998). Given that it is a defense hostility to or resentment of civil rights to punitive damages liability, courts laws. So too may it be proven by evidence should certainly place the burden on of a pervasive or lengthy pattern of employers to prove their entitlement to discriminatory behavior, and by improper this defense--not place yet another burden or nonresponsive reactions to complaints on plaintiffs by requiring them to prove of discrimination. If the employer invokes the lack of good faith. a good-faith defense, it should not be able Although Kolstad states that an to prevent the admission of prior bad acts employer may avoid punitive damages evidence related to Title VII compliance. liability only if it can show that it "had Indeed, an employer's entire EEO record been making good faith efforts to enforce should become admissible. In Kolstad, the an antidiscrimination policy," the majority ADA's record, including the consent opinion fails to provide guidance as to decree, should presumably be admissible how much an employer must actually do during the punitive damages trial. itself of this defense. Judge Tatel's to avail However appropriately courts may cited opinion makes clear that handle this new good faith defense, policy will not promulgation of a written fundamentally Kolstad flies in the face of The approach adopted by be enough. the clear language of Section 1981a and many lower courts in sending to the jury congressional intent in enacting a punitive the factual issues concerning damages provision. The legislative history ''reasonableness" of the employer's and demonstrates that Congress chose to actions as elements of the employee's protect the interest of businesses by affirmative defense is Ellerth/Faragher capping damages, not by narrowing the the preferred course. Like that obviously standard for punitive damages liability or the standard of good of reasonableness, providing safe harbors for employers. quintessentially a fact-based, value- faith is Because Kolstad was a case of statutory that should be laden determination construction, Congress' judgment should by juries, not judges. decided have controlled--not the Supreme Court's Kolstad will necessarily expand the view of the best way to "incentivize" discovery needs of plaintiffs trying to employers to comply with the law. 328 Debra S. Katz is a partner in D.C.'s Copyright © 1999 American Lawyer Bernabei & Katz specializing in Newspapers Group Inc. employment discrimination matters. 329 Last Term: Karen SUTTON and Kimberly HINTON, petitioners V. United Air Lines, Inc. No. 97-1943 Supreme Court of the United States Decided June 22, 1999 JUSTICES RAISE BAR TO QUALIFY AS DISABLED Austin American-Statesman Wednesday, June 23, 1999 Joan Biskupic WASHINGTON - The Supreme "These decisions create the absurd Court significantly curtailed the scope of a result of a person being disabled enough federal law designed to protect disabled to be fired from a job, but not disabled workers from discrimination Tuesday. By enough to challenge the firing," said a 7-2 vote, the justices ruled that the Georgetown University law professor Americans With Disabilities Act does not Chai Feldblum, who helped draft the cover people whose disabilities can be statute and who was one of several sufficiently corrected with medicine, advocates who said they would ask eyeglasses or other measures. Congress to change the law. In their broadest look at the ADA to The rulings represent a substantial win date, the justices decided four disabilities for employers, who praised the court's cases, the most important being a pair of decision to limit who is covered by the rulings that would prevent millions of statute. "Employers make reasonable people from seeking coverage under the accommodations for employees who are landmark 1990 law. The highly anticipated truly disabled," said Steve Bokat, general rulings could profoundly affect people counsel at the U.S. Chamber of with a range of impairments -- from Commerce, "but they should not have to diabetes and hypertension to severe relax necessary standards for employees nearsightedness and hearing loss -- who who have common and easily correctable are able to function in society with the ailments." but whose help of medicines or aids The disability cases were closely employers impairments may still make followed by workers, businesses, civil consider them ineligible for certain jobs. rights advocates and the Clinton 330 administration, which had urged the with glasses -- and get along as well as justices to interpret the law in a broad most other people. manner. Tuesday, the Supreme Court agreed, By identical votes of 7-2 in a pair of rejecting the position of the U.S. Equal cases -- one involving two nearsighted Employment Opportunity Commission pilots and the other a mechanic with high and the majority of federal appeals courts. blood pressure -- the court ruled that "Looking at the Act as a whole," when judges assess whether a worker Justice Sandra Day O'Connor wrote for pressing a disability-bias suit qualifies as the majority, "it is apparent that if a "disabled" under the law, they must take person is taking measures to correct for, into account any measures that lessen the or mitigate, a physical or mental worker's impairment. impairment, the effects of those measures By a unanimous vote in Albertson's -- both positive and negative -- must be vs. Kirkingburg, the justices ruled that taken into account when judging whether employers who set job qualifications that person is 'substantially limited' in a based on federal safety standards are not major life activity." required to dispense with those standards O'Connor noted that Congress had when a worker -- in this case, a truck written in the law that "some 43 million driver blind in one eye -- obtains a waiver Americans have one or more physical or from the federal agency. mental disabilities" and argued that if the Also, by a 6-3 vote, the court ruled law were intended to cover all those with that states must place certain people with common, correctable impairments such as mental disabilities in community homes nearsightedness, that figure would have rather than hospitals. been far larger. Enacted after years of effort, the But the majority also emphasized that Americans with Disabilities Act was whether a person has a disability is an meant to open jobs and public spaces to individual question and that some people the nation's then-estimated 43 million who have prosthetic limbs or other disabled people. The law defines a corrective devices could still be "disability" as a "physical or mental considered "disabled" because of a impairment that substantially limits one or substantial limitation of their life activities. more ... major life activities." On O'Connor was joined by Chief Justice Tuesday, the court addressed the most William Rehnquist and Justices Antonin fundamental question of how to Scalia, Anthony Kennedy, David Souter, determine who is and is not disabled. Clarence Thomas and Ruth Bader The main ruling dealt with twin sisters Ginsburg in Sutton v. United Air Lines, from Spokane, Wash., Karen Sutton and as well as in the ruling involving a Kimberly Hinton, who were turned down mechanic with hypertension, Murphy v. for pilot jobs at United Air Lines because United Parcel Service. of their extreme nearsightedness, failing Dissenting in both cases were Justices the airline's minimum requirement for John Paul Stevens and Stephen Breyer. In uncorrected visual acuity of 20/100. a statement written by Stevens, they said, When they sued under the ADA, judges "To be faithful to the remedial purpose of said the law did not cover people who can the Act, we should give it a generous, correct their disabilities -- in this case, rather than a miserly construction." 331 Roy Englert, who represented United, function in society in a difficult position. said he was pleased with the court's ruling, "You're damned if you don't medicate, which was cheered by other employers as but you're damned if you do, because you well. Human resources lawyer Ted Gies lose your legal rights," Greene said, said the court provided important adding that sometimes impaired persons "clarification" about who is covered by who can do the job might nonetheless the ADA and its decision will help to seek special accommodations or extra reduce ADA lawsuits. "Most people time off for medical care. would say," Gies said, "that the biggest human resource and legal challenge is the ADA." Copyright C 1999 The Austin American- Statesman But Michael Greene, a lawyer for the American Diabetes Association, said the ruling puts people who take medicine to 332 PARSING DISABILITY LAW Court's ADA Ruhngs Are Tough on Plaintiffs New York Law Journal Thursday, July 1, 1999 Lisa L Fried THE U.S. SUPREME COURT's more major life activities, has a record of rulings last week clarifying who is disabled such an impairment, or is regarded as under the Americans with Disabilities Act having such an impairment. are being hailed as a victory for employers and a devastating blow to impaired On June 22, the Court provided some employees. clarity, ruling in a trio of cases that individuals who use medication, medical Management attorneys say the Court's devices or other measures to fully correct narrowing of the definition of a disability their impairments are not disabled and to conditions that are not medically thus not protected by the ADA. The correctable will reduce the number of disability must be present and actual, the frivolous suits filed under the ADA and Court said. make it easier for employers to beat those Employment attorneys on both sides claims. Plaintiffs' attorneys say the say the 7-2 ruling in Sutton v. United Air Supreme Court has cut the heart out of Lines Inc., 97-1943, which the High Court the ADA, giving employers a green light also followed in Albertson's Inc. v. to discriminate against those with treatable Kirkingburg, 98-591, and conditions, such as epilepsy, cancer and Murphy v. diabetes. United Parcel Service, 97-1992, will have a dramatic effect on disability discrimination Attorneys on both sides said future claims. litigation in the lower courts will focus on Contact Lenses whether a plaintiff has fully corrected a condition, since the High Court did not In Sutton v. United Air Lines, two clearly define that issue. Furthermore, near-sighted twin pilots sued a commercial many predict the stringent nature of the airline that failed to hire them based on ruling will prompt more plaintiffs to seek their vision impairment. The Court ruled relief under state laws that provide in favor of the employer, finding that the broader protection than does the ADA. pilots were not disabled under the ADA because the use of contact lenses or The Scope of the ADA glasses improved their vision perfectly. The ADA prohibits employers from "A person whose physical or mental discriminating against an individual on the impairment is corrected by medication basis of a disability. The 1990 statute, or other measures does not have an which went into effect in 1992, does not impairment that presently 'substantially clearly define a protected disability. limits' a major life activity," the Court Under the statute, a person is disabled if said. he or she possesses a physical or mental impairment that substantially limits one or In limiting the class of disabled individuals protected by the ADA, the 333 Court looked to the plain language of the courthouse doors are no longer wide open statute. In the majority opinion in Sutton, to individuals with physical or mental Justice Sandra O'Connor wrote, "Because impairments that are corrected by the phrase 'substantially limits' appears in medications or other measures." the Act in the present indicative verb This more stringent definition of form, we think the language is properly disability should reduce the number of read as requiring that a person be cases brought on the federal level and in presently -- not potentially or states such as Massachusetts, New hypothetically -- substantially limited in Hampshire and Rhode Island, whose anti- order to demonstrate a disability." discrimination laws mirror the ADA However, Justice O'Connor added, definition, attorneys said. the ADA does protect individuals who are And many attorneys predict that when still substantially limited in a major life plaintiffs do initiate suits under the ADA, activity after taking medication or using a employers will be even more likely to medical device, reiterating the statute's receive summary judgment. requirement that the determination of a disability be made on a case-by-case basis. Last year, plaintiffs brought 408 cases under the ADA, according to the The ADA does not define major life American Bar Association. In total, 297 activity, but Equal Employment cases reached a final resolution, with Opportunity Commission regulations employers prevailing 94 percent of the define it to include working, seeing, time. hearing, speaking, breathing, learning, caring for one's self, walking and "Employers are much more successful performing manual tasks. in these cases because a lot of these cases are brought by folks who are not really In the Sutton case, the plaintiffs had disabled but who have a temporary argued that they were substantially limited injury," said Ira Rosenstein, a partner with in the major life activity of working, since the New York office of Orrick, United Airlines failed to hire them. Herrington & Sutcliffe, who represents However, the Court said that plaintiffs employers. "Those cases trivialize the making such arguments must prove that cases brought by people who have true despite the fact that they possess the disabilities and need the protection of the requisite skills, their impairment precludes Act," he said. them from being considered for a broad Indeed, many employment attorneys class of jobs. believe that the Supreme Court's decision Since in this case, the pilots could be reflects its desire to slash the number of employed by other airlines that do not frivolous ADA suits. While lawyers on impose the same vision requirement on both sides concede this is valuable, pilots, they are not substantially limited in plaintiffs' attorneys say the Court went working and not covered by the statute, too far. the Court said. "The Court has thrown the baby out "These three Supreme Court decisions with the bath water," said Adam Klein, a will have a considerable impact on ADA partner with Levy Davis Maher & Klein, cases," said John Canoni, a partner with who represents plaintiffs. "The facts of Nixon, Hargrave, Devans & Doyle, who the Sutton case have now led to a parsing represents employers. "The federal down of the ADA to the point that only 334 those people who are traditionally ideally suited for a job," Justice O'Connor disabled, those who are in a wheelchair, wrote. deaf or blind, are covered," Mr. Klein This part of the decision will give continued. employers' ammunition to argue that any "I am concerned that these decisions medical condition of an employee will may discourage lawyers from bringing the disqualify the person based on the really good cases," added plaintiffs' physical job requirements, said Mr. Klein. attorney Jonathan Ben-Asher, a partner This runs contrary to the purpose of the with Beranbaum Menken Ben-Asher & statute, he said, which is to prevent Fishel. "I don't think Congress intended employers from making employment to remove a huge number of people from decisions based solely on stereotypical ADA coverage because they are trying to thinking. function as best as they can on the job." Added James Carr, chairman of the Unanswered Questions ABA's commission on mental and law, "It is a dangerous Furthermore, the ruling leave physical disability comment that could open the door to unanswered what type of conditions are people making employment decisions correctable. "While vision is clearly fully criterion." correctable with glasses, what about a based on inappropriate cancer patient who undergoes State and Local Laws chemotherapy and may be in remission or Given the tougher road plaintiffs face a person with dyslexia who has taught under the ADA, those based in states himself to overcome it?" asked Mr. such as New York, New Jersey and Rosenstein. Connecticut, which define disability more The ruling also affirmed parts of the broadly than does the federal law, will ADA that protect employers. For look to state law for relief. Many example, the statute does not require plaintiffs' attorneys already add claims employers to hire a disabled individual if under state and local laws to their ADA that person cannot perform the essential suits brought in federal court. Attorneys job functions. Some attorneys believe said that more will likely do so or instead that Sutton took that concept a step bring cases in state court. further, empowering employers to use In New York, the state's Executive broad discretion in determining whether Law and New York City's Administrative an individual is qualified for the job. Code give disabled plaintiffs more The Sutton Court said that the ADA protection against discrimination than allows employers to favor some physical does the ADA. attributes over others and establish Neither the city law nor the state law physical criteria for job requirements. require an individual to have a disability "An employer is free to decide that that is substantially limiting. Rather, @ physical characteristics or medical 292 (21a) of the Executive Law defines a conditions that do not rise to the level of disability as a physical, mental or medical an impairment -- such as one's height, impairment resulting from anatomical, build or singing voice -- are preferable to physiological, genetic or neurological others, just as it is free to decide that some conditions, which prevents the exercise of limiting, but not substantially limiting a normal bodily function or is impairments make individuals less than demonstrable by medically accepted 335 techniques. Claims can also be brought if In New York City, plaintiffs' attorneys others regard the individual as disabled, or who do not bring disability discrimination if the employee has a record of his or her claims under federal, state and city law will impairment. be committing malpractice, said one attorney. Section 8-102 (16) of the city's Administrative Code defines a disability as any physical, medical, mental or Copyright © 1999 New York Law or a history or psychological impairment, Publishing Company record of such impairment. 336 Last Term: Tommy OLMSTEAD, et al., petitioners V. L. C., et al. No. 98-536 Supreme Court of the United States Decided June 22, 1999 JUSTICES REJECT "UNNECESSARY SEGREGATION" OF MENTALLY DISABLED AT STATE HOSPITALS Los Angeles Times Wednesday, June 23,1999 David G. Savage, Times Staff Writer In a landmark victory for people with The focus of the decision was on mental disabilities, the Supreme Court those patients who could be cared for just ruled Tuesday that patients in state mental as well in a community home rather than hospitals have a right to leave these in a large institution. institutions and move to small, Some advocates said the ruling means community homes whenever they and the end of the "Nurse Ratchet method," they are ready to do so. their doctors think referring to the dominating, steely-eyed The "unnecessary segregation of villain in the fictional mental institution persons with mental disabilities" is a form featured in the movie "One Flew Over of discrimination outlawed by the the Cuckoo's Nest." Disabilities Act, the court Americans With Before 1955, more than 500,000 said on a 6-3 vote. patients were housed in mental hospitals Tuesday's ruling does not mean that across the nation. Once considered a most patients in these hospitals will be progressive form of treatment, these leaving soon, or perhaps ever. For many hospitals were scorned as prisons for psychiatric problems, a hospital is the best patients in recent decades. These days, and most appropriate setting, the court only an estimated 75,000 beds remain in said. During the 1970s, officials erred by state facilities for those with mental closing too many facilities and sending impairments. streets with troubled patients out into the The court's ruling Tuesday stemmed no care or supervision. from a case in Georgia, where state 337 officials maintained that they had the Appeals. Georgia's director of human authority to decide which form of resources, Tommy Olmstead, appealed on treatment was better, even when their states' rights grounds. preferred the community own doctors For disability-rights activists, the case homes. was hailed as the "Brown vs. Board of Their policy was challenged by two Education decision" for the disabled, a mentally retarded women, Lois Curtis and reference to the 1954 ruling that outlawed Elaine Wilson, who hoped to leave the racial segregation in public schools. Georgia Regional Hospital in Atlanta. In California, a coalition representing Doctors at the facility agreed that they 24 groups statewide that help persons were ready to move to a community home with disabilities called the ruling "a but hospital officials balked. milestone for the independent-living "The institution was not for me," movement." Wilson said in a telephone interview. "All Ginsberg wrote the you do is eat and sleep." After moving to Justice Ruth Bader majority opinion in the case (Olmstead vs. a community home during the course of L.C., 98-536). Chief Justice William H. litigation, Wilson said that she became Rehnquist and Justices Antonin Scalia and active in programs that taught her to cook Clarence Thomas dissented. and to care for herself. A federal judge in Atlanta ruled for the two women, as did the U.S. Court of Copyright C 1999 Times Mirror Company 338 STATES LIMITED ON INSTITUTIONALIZATION The New York Times Wednesday, June 23, 1999 Linda Greenhouse Isolating people with disabilities in big The case involved a 1995 lawsuit filed state institutions when there is no medical on behalf of Lois Curtis and Elaine reason for their confinement is a form of Wilson, both of them mentally retarded discrimination that violates Federal and mentally ill, who sought state care disabilities law, the Supreme Court ruled outside the Georgia Regional Hospital, today. where they had lived off and on for years. Both remained in the hospital for several The 6-to-3 decision, in a case brought after state doctors had concluded against the State of Georgia by two years that women with mental impairment, was a they could be more appropriately cared for in small group homes. substantial victory for a disabilities rights movement that has looked to the In some respects, the decision today Americans With Disabilities Act of 1990 was the Court's first rather than last word as a tool for breaking down institutional on the subject, and it may require more walls that separate people with serious cases to clarify the full dimensions of the mental and physical problems from the ruling. Justice Ruth Bader Ginsburg's larger community. majority opinion held that states' obligation to The ruling affirmed, in most respects, care for people in small, neighborhood-based settings was limited a decision last year by the Federal appeals to some degree by available resources. court in Atlanta, which held that states States are not required to close their big have a duty under the 1990 law to provide hospitals -- care in group homes when medically which, the Court emphasized, may still be appropriate for some people - appropriate. In 1994, the Federal appeals - or to create group home programs that court in Philadelphia, in the only other they do not now appellate decision on the subject, reached have. (In fact, though, every state now has such a program.) the same result. The decision interpreted a regulation The Supreme Court's decision six that requires states to make "reasonable months ago to hear Georgia's appeal in modifications" in their programs to avoid this case alarmed advocates for people discriminating against people with with disabilities, who feared that the Court disabilities, while at the same time might steer the law in the opposite providing that states need not make direction and reverse the nationwide trend "fundamental" alterations. toward deinstitutionalization. An unusually vigorous grass-roots campaign Justice Ginsburg said that if a state sprang up around the case, leading 15 of "were to demonstrate that it had a the 22 states that had originally supported comprehensive, effectively working plan Georgia to disavow the state's position in for placing qualified persons with mental the Supreme Court. disabilities in less restrictive settings, and a waiting list that moved at a reasonable 339 pace not controlled by the state's discriminating against people or excluding endeavors to keep its institutions fully them from programs "by reason of" their populated, the reasonable-modifications disabilities. A regulation issued by the standard would be met." Attorney General at Congress's direction, after the law's adoption, That interpretation did not give the provides that "a public states enough leeway to satisfy the three entity shall administer services, programs dissenting Justices. Justice Clarence and activities in the most integrated setting appropriate to the needs Thomas, joined in a dissenting opinion by of qualified Chief Justice William H. Rehnquist and individuals with disabilities," with "integrated setting" defined as "a Antonin Scalia, said the decision Justice setting that imposed "significant federalism costs" enables individuals with disabilities and failed to "respect the states' historical to interact with nondisabled role as the dominant authority responsible persons to the fullest extent possible." for providing services to individuals with Georgia argued that the two mentally disabilities." impaired women involved in the case did not come within the disabilities law's Justice Thomas predicted that states protection because they would "now be forced to defend had not been subjected to discrimination, themselves in Federal court every time which the resources prevent the immediate state defined as unequal treatment. Justice Ginsburg said today that placement of a qualified individual." He in the context of said that rather than addressing the Federal law, "unjustified isolation, we hold, is properly regarded as discrimination in any conventional sense, the majority was imposing its own discrimination based on disability." "standard of care." "Institutional placement of persons who can handle and benefit The majority opinion was joined by from community setting perpetuates Sandra Day O'Connor, David H. Justices unwarranted assumptions that persons so Souter, John Paul Stevens and Stephen G. isolated are incapable or unworthy Breyer. Justice Anthony M. Kennedy of participating in community concurred in a separate opinion, noting life," Justice Ginsburg continued. She added that "the depopulation of state mental that "confinement in an institution severely hospitals has its dark side" and warning diminishes the everyday life activities that the decision should not be interpreted of individuals, "to drive those in need of medical care including family relations, social contacts, work options, and treatment out of appropriate care and economic independence, educational advancement into settings with too little assistance and and cultural enrichment." supervision." Justice Breyer also signed that part of Justice Kennedy's opinion. One of the two plaintiffs lives today in a three-person group home, and the other While the decision, Olmstead v. L.C., lives in her own apartment, with No. 98-536, referred throughout to supportive services. mental disabilities, the ruling also applies to the states' obligations to people with Ira Burnim, the legal director of the serious physical disabilities. Bazelon Center for Mental Health Law, an organization here that coordinated The decision interpreted Title II of Supreme Court briefs on the women's the disabilities act, which prohibits state behalf, praised the decision. "This is the and local governments from first time the Court has announced that 340 needless institutionalization is a form of Copyright C 1999 The New York Times discrimination," he said in an interview, Company adding that the disabilities rights movement had been working toward this goal for 30 years. 341 RICE v. CAYETANO "Vote Here. Hawaians ONLY": Special Purpose Elections by Race Matthew Curtis * In Rice v. Cayetano, "native Hawaiians" compare themselves to American Indians, and a native Hawaiian lacking the required ethnicity complains that he is being treated as a second class citizen. Rice, who was born in Hawaii and whose ancestors were in Hawaii prior to 1893, filed suit against the State of Hawaii when he was denied the opportunity to vote in a special election for trustees of the Office of Hawaiian Affairs. The OIA administers a public trust fund (derived largely from profits generated by publicly held land) for the benefit of native Hawaiians. By statutory definition, Rice does not have the required percentage of "native Hawaiian" blood to be permitted to vote in the election - nor could he have stood for election as a trustee of the fund. Congress established the public trust fund when it annexed Hawaii in 1893. Upon attaining statehood in 1959, Congress directed that a portion of the trust fund would be devoted to "the betterment of the conditions of native Hawaiians." In his suit, Rice claims that he has been denied his constitutional rights under the Fourteenth and Fifteenth Amendments. The Court of Appeals for the Ninth Circuit rejected Rice's claim. Judge Rymer of the Ninth Circuit concluded that the racial requirement was essentially a legal or political distinction rather than a racial one because it was rationally related to the purpose of the trust fund. Judge Rymer reasoned that those who have a stake in the fund should be the ones to whom the trustees of the fund are responsible. Claiming the issue had not been raised by Rice, Judge Rymer did not address the question whether the entire program was unconstitutional under the Fourteenth or Fifteenth Amendments. Although noting that race was a distinguishing factor in Rice v. Cayetano, Judge Rymer cited Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719 (1973). In Salyer, Justice Rehnquist, writing for the majority, upheld a "special purpose" election for management of water storage districts in which only landowners were permitted to vote. Rehnquist found the exclusion permissible because the landowners alone had a stake in the election and the districts lacked "normal governmental authority." Judge Rymer concluded that Salyer was persuasive and supported the Ninth Circuit's position in Rice. Judge Rymer downplayed any differences between the status of "native Hawaiians" and American Indians - "they aren't organized in tribes and there isn't an Hawaiian Commerce Clause in the Constitution." American Indians have used the special status accorded them by Congress to obtain various benefits including mineral rights and compensation for the use of Indian land. Thus, any comparison to American Indians strengthens the "native Hawaiian's" legal and political positions. However, Judge Rymer overlooked the significant fact that American Indian tribes were recognized as sovereign by various treaties, while "native Hawaiians" never entered into a treaty with the government. Therefore, the Supreme Court will likely reject the comparison. Consequently, if the Court rules against the College of William and Mary School of Law, Class of 2001; Co-Director, Student Division of the Institute of Bill of Rights Law. 342 "native Hawaiians," it seems unlikely that there will be any impact on any Bureau of Indian Affairs' programs. However, Rice v. Cayetano may hold greater implications for affirmative action programs where race is accorded a special status or is the basis of preferential treatment. Rice relied on the Court's decision in Adarand Constructors,Inc. v. Pena, 515 U.S. 200 (1995), in arguing that the Ninth Circuit must apply the strict scrutiny test to the OHA election. In Adarand, a majority of the Court concluded that strict scrutiny must be applied whether the race classification at issue is "remedial" or "benign." (Strict scrutiny requires a compelling governmental interest and a narrowly tailored remedy) Thus, Rice v. Cayetano may provide the Court an opportunity to reinvigorate its holding in Adarand and further limit "remedial" race-based preferences. 343 98-818 Rice v. Cayetano Ruling below (9th Cir., 146 F.3d 1075): Neither equal protection clause nor 15th Amendment bars restricting participation in elections for trustees of Office of Hawaiian Affairs - who administer public trust funds set aside for betterment of "native Hawaiians" and "Hawaiians," i.e., descendants of aboriginal people who inhabited Hawaii in 1778 and thereafter - to only those voters who meet blood quantum requirement for native Hawaiian or Hawaiian, who constitute only group with stake in trust and funds administered by OHA trustees, who have no general governmental powers and perform no general governmental functions. Question presented: Did court of appeals err in holding that 14th and 15th Amendments permit adoption of explicit racial classification that restricts right to vote in statewide elections for state officials? 344 Harold F. RICE, Appellant v. Benjamin J. CAYETANO, Governor of the State of Hawai'i, et al., Appellees United States Court of Appeals for the Ninth Circuit Decided June 22, 1998 RYMER, Circuit Judge. Hawaii holds special elections for in special trustee elections to those for trustees of the Office of Hawaiian Affairs whose benefit the trust was established. (OHA), who must be Hawaiian and who administer public trust funds set aside for the betterment of "native Hawaiians" and Harold F. Rice, who is caucasian and "Hawaiians," in which only people who not a beneficiary of the trusts meet the blood quantum requirement for administered by OHA's trustees, appeals "native Hawaiian" or "Hawaiian" may the district court's summary judgment in vote.' There is a long history behind the favor of Benjamin J. Cayetano, Governor use and structure of the public lands trust of Hawaii, upholding the voter for the benefit of descendants of the qualification in a published opinion. original races inhabiting the Hawaiian (footnote ommitted) Rice v. Cayetano, 963 Islands, none of which is challenged in F.Supp. 1547 (D.Haw.1997). We agree this appeal. Rather, we must decide only that the franchise for choosing trustees in whether Hawaii may limit those who vote special elections may be limited to Hawaiians, because Hawaiians are the only group with a stake in the trust and the ' "Hawaiian" means "any descendant of funds that OHA trustees administer. They the aboriginal peoples inhabiting the have the right to vote as such, not just Hawaiian Islands which exercised because they are Hawaiian. For this sovereignty and subsisted in the Hawaiian reason, neither the Fifteenth Amendment Islands in 1778, and which peoples nor the Equal Protection Clause precludes thereafter have continued to reside in Hawaii from restricting the voting for Hawaii," and "native Hawaiian" means trustees to Hawaiians and excluding all "any descendant of not less than one-half others. Therefore, as we have jurisdiction part of the races inhabiting the Hawaiian under 28 U.S.C. § 1291, we affirm. Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term 2 Although neither party addresses refers to the descendants of identically standing, it is a threshold question that we such blood quantum of such aboriginal must consider even if not raised in the exercised sovereignty and peoples which district court or on appeal. FW/PBS, Inc. in 1778 subsisted in the Hawaiian Islands v. City of Dallas, 493 U.S. 215, 230-31 thereafter continued to and which peoples (1990); McMichael v. County ofNapa, 709 Haw.Rev.Stat. 10-2. reside in Hawaii." § F.2d 1268, 1269 (9th Cir.1983). While 345 I 191 (1993), set aside some 200,000 acres of public lands as "available lands" for A nominal price leases to "native Some history is helpful by way of Hawaiians." HHCA § 203. The term background. (footnote ommitted) "native Hawaiian" was defined to mean "any descendent of not less than one-half part of the blood of the races inhabiting Hawaii was an independent kingdom the Hawaiian Islands previous to 1778." from 1810 until 1893 when it was HHCA § 201(7). HHCA responded to overthrown and replaced by a provisional the fact that the number of full-blooded government (the Republic of Hawaii) that Hawaiians was decreasing and that the sought annexation to the United States. Hawaiian race required rehabilitation by The United States accepted the cession of being returned to the land. H.R.Rep. No. sovereignty of Hawaii in the Annexation 839, 66th Cong., 2nd Sess. at 4 (1920). Act of 1898. 30 Stat. 750 (1898). As a Accordingly, it specified that the trust was result, roughly 1,800,000 acres of crown, to be administered on behalf of the native government, and public lands were ceded Hawaiian beneficiaries of the Act. HHCA to the United States. The Annexation Act ( 101(c). provided, however, that all revenues from the public lands were to "be used solely for the benefit of the inhabitants of the Hawaii was admitted to the union as a Hawaiian Islands for educational and state in 1959. Admission Act of March other public purposes." Id. The Organic 18, 1959, Pub.L. No. 86-3, 73 Stat. 4, Act, passed in 1900, established the reprinted in, 1 Haw.Rev.Stat. at 90 (1993). Territory of Hawaii and confirmed that In connection with admission, Hawaii the public lands ceded to the United agreed as a compact with the United States would remain in the possession of States to adopt the HHCA, including its the government of the Territory for public definition of native Hawaiians, as part of works and other public purposes. the state Constitution. Admission Act § 4. Organic Act § 91, 31 Stat. 141 (1900), Article XII, § 1 of the Hawaii Constitution reprinted in, 1 Haw.Rev.Stat. at 84 (1993). accomplished this. Further, the Admission Act provided that public lands held by the United States that were In 1920, the Hawaiian Homes granted or conveyed to Hawaii pursuant Commission Act (HHCA), 42 Stat. 108 to § 5(b) were to be held by Hawaii as a (1921), reprinted in, 1 Haw.Rev.Stat. at public trust for five purposes, one of which is "the betterment of the conditions of native Hawaiians."' Admission Act ( Rice may have only a generalized interest in the affairs of OHA and its trustees, he 3 Section 5(f) provides that the lands appears to be an adequately injured party granted to the State of Hawaii by the who as a caucasian resident of Hawaii Admission Act, together with proceeds on allegedly is denied the right to vote and income, shall be held by said State as racial grounds in a statewide election. See, a public trust for the support of the public 206-08 e.g., Baker v. Carr,369 U.S. 186, schools and other public educational to fundamental (1962) (asserted injury institutions, for the betterment of the right to vote deemed a sufficient personal conditions of native Hawaiians, as defined stake to support standing). in the Hawaiian Homes Commission Act, 346 5(f). The other four purposes pertain to Hawaiians. Haw.Rev.Stat. § 10-3(2). the public generally. (footnote omnitted) Pursuant to the constitution and statutes enacted to implement it, OHA is governed by a board of trustees whose As it happens, no benefits actually members must be Hawaiian and who are went to native Hawaiians until the state elected in special elections by qualified constitution was amended in 1978 to voters who are Hawaiian. Haw.Rev.Stat. establish the Office of Hawaiian Affairs. §§ 13D-1, 13D-2, 13D-3(b)(1), 13D-4. OHA was created to hold title to § 5(b) property (except for HHCA "available lands," which are separately administered B by the Department of Hawaiian Home Rice was born and has always lived in Lands) in trust and manage it for native Hawaii. While he traces his ancestry to Hawaiians and Hawaiians.4 Haw. Const. two members of the legislature of the art. XII, § 5. OHA administers for native Kingdom of Hawaii, prior to the Hawaiians a pro rata share (now twenty Revolution of 1893, Rice is caucasian and per cent) of the public lands trust that was is not within the statutory definition of created under § 5(f) of the Admission Hawaiian or native Hawaiian. See Act.' See Haw. Con. art. XII, §5 4, 6; Haw.Rev.Stat. 5 10-2. Haw.Rev.Stat. §§ 10-3(1), 10-13.5. It also administers appropriated funds for In March 1996, Rice applied to vote in 1920, as amended, for the development of the August 1996 election for trustees of farm and home ownership on as OHA. The registration form contained widespread a basis as possible for the the following declaration: "I am also making of public improvements, and for Hawaiian and desire to register to vote in the provision of lands for public use. OHA elections." Rice crossed off the Admission Act, § 5(f). phrase "am also Hawaiian and" and marked "yes" on the application. He is 4 The purposes of OIA are the otherwise a qualified voter, but his betterment of conditions of native application was denied since he is not Hawaiians and Hawaiians, serving as the Hawaiian. principal agency responsible for the performance, development, and coordination of programs for native Rice brought this action pursuant to assessing Hawaiians and Hawaiians, 42 U.S.C. § 1983 challenging his exclusion agencies impacting on policies of other from voting for OHA trustees on the native Hawaiians and Hawaiians, and grounds that conditioning eligibility on applying for, receiving, and disbursing being Hawaiian violates the Voting Rights grants for native Hawaiian and Hawaiian Act of 1965 as amended (42 U.S.C. 5§ programs and services. Haw.Rev.Stat. § 1971 et seq.), (footnote ominitted) 42 10-3. U.S.C. § 1981, and the Fourteenth and ' The other four purposes for the § 5(f) Fifteenth Amendments of the United trust have no allocated pro rata States Constitution. The district court percentage, nor is the remaining revenue concluded that the method of electing administered by OHA.. OHA trustees meets constitutional standards for the essential reason that the 347 restriction on the right to vote is not is at issue. That being so, it contends, the based upon race, but upon a recognition limitation of the right to vote for OHA of the unique status of native Hawaiians trustees to Hawaiians and native that bears a rational connection to Hawaiians is not a racial classification, but Hawaii's trust obligations. In any event, a legal one based on who are beneficiaries the court noted, OHA performs no truly of the trusts in a special purpose, governmental functions and "is carefully disproportionate impact election of the constrained by its overall purpose to work sort described in Salyer Land Co. v. Tulare for the betterment of Hawaiians." 963 Lake Basin Water Storage Dist., 410 U.S. 719 F.Supp. at 1558. Having already disposed (1973). In any event, Hawaii points out, it of other claims, the court entered did not intentionally discriminate on the summary judgment. Rice timely appealed. basis of race because the genesis of the whole structure was Congress's requirement that the new state of Hawaii II accept the definition of native Hawaiian in Rice complains about the the HHCA and accede to the purposes of "extraordinary" authority and discretion the § 5(f) trust which include, in part, that OHA, which is a state agency, is betterment of the conditions of native Hawaiians. Finally, the state submits, its given to provide government services to a segment of the population defined classification survives rational basis review exclusively by race, funded by a twenty (which is the appropriate standard) under percent share of revenues from the public Morton v. Mancari, 417 U.S. 535 (1974), lands trust which may lawfully be applied because the federal government and the for the benefit of all people of the state state of Hawaii have the same special without regard to race, and run by trustees relationship with and owe the same who are voted into office by an electorate unique obligation to native Hawaiians as apportioned on a purely racial basis. He the federal government does to Indian submits that the racial restriction on the tribes. right to vote violates the Fifteenth Amendment because it conditions the Rice counters Hawaii's argument that right to vote in statewide elections for the right to vote merely reflects the legal trustees on membership in the Hawaiian status of native Hawaiians and Hawaiians race. It violates the Fourteenth by pointing out that the legal status of Amendment, according to Rice, because being a beneficiary of the OHA trusts is this classification by race, and the based only on race. That may be so, but corresponding racial restriction on the the constitutionality of the racial franchise, fails the test of strict scrutiny classification that underlies the trusts and which must be applied to all distinctions OHA is not challenged in this case.' This based on race under Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). *** 6 In this connection, we note that the scholarly work upon which Rice Hawaii, on the other hand, relies--and others that we have emphasizes that neither the definition of read--focuses on the underlying native Hawaiians or Hawaiians, nor the arrangement and its constitutionality, not designation of specific public lands for on the voting rights provision at issue their benefit, nor OHA, nor its purposes, here. See Stuart M. Benjamin, Equal Protection and the Special Relationship, 348 means that we must accept the trusts and A their administrative structure as we find respect to the them, and assume that both are lawful.7 Specifically with Fifteenth Amendment, (footnote ommitted) Rice maintains that Hawaii has If, as we must, we take it as given that created a racially pure voting bloc which lands were properly set aside in trust for states cannot do for any reason under native Hawaiians; that the State properly Gomillion v. Ljhfoot, 364 U.S. 339 (1960). established an Office of Hawaiian Affairs Moreover, he points out, the Fifteenth to hold title to, and manage, property set Amendment is self-executing and absolute aside in trust or appropriated exclusively on its face. Since the voter qualification is for native Hawaiians and Hawaiians; and expressly racial, and absolutely denies the that OHLA is properly governed by a right to vote to all races except the board of trustees whose members are Hawaiian race, Rice contends that it Hawaiian, it follows that the state may violates the plain meaning of the Fifteenth rationally conclude that Hawaiians, being Amendment without need for further the group to whom trust obligations run inquiry. Shaw v. Reno, 509 U.S. 630 (1993). and to whom OHA trustees owe a duty of loyalty, (footnote ommitted) should be the Rice is, of course, quite right that the group to decide who the trustees ought to Hawaii Constitution and Haw.Rev.Stat. be. Put another way, the voting 13D-3 contain a racial classification on restriction is not primarily racial, but legal their face. The Hawaii Constitution or political. Thus, we conclude that Rice's provides in Article XII, section 5: "There argument fails under both the Fourteenth shall be a board of trustees for the Office and Fifteenth Amendments for essentially of Hawaiian the same reasons. Affairs elected by qualified voters who are Hawaiians, as provided by law." And § 13D-3, implementing it, provides that: "No person shall be 106 Yale L.J. 537 (1996); see also Jon Van eligible to register as a voter for the Dyke, The Constitutionality of the Office election of board members unless the of Hawaiian Affairs, 7 U. Haw. L.Rev. 63 person meets the following qualifications: (1985). (1) The person is Hawaiian." Haw.Rev.Stat. § 13D-3(b). 7 We express no opinion on the constitutionality of the underlying trust structure, or of OHA's purposes, because Yet restricting voter eligibility to we are not called upon to determine the Hawaiians cannot be understood without constitutionality of any of the racial reference to what the vote is for. As the classifications in the HHCA or the district court explained in detail, 963 Admission Act or the Hawaii Constitution F.Supp. at 1556-57, the vote is for the or the statutes establishing OHA--except limited purpose of electing trustees who for the one provision in Article XII, have no general governmental powers and Section 5 of the Constitution and perform no general governmental Haw.Rev.Stat. § 13D-3, limiting the right purposes.' The voting restriction itself to vote for OHA trustees, that are directly challenged here. 8 OHA trustees have power to manage proceeds and income from whatever 349 applies only at a special election to elect districts' electoral scheme comported with members of the OHA board; (footnote the Fourteenth Amendment and did not ommitted) in general elections, all persons run afoul of the popular election generally qualified to vote may vote. In requirements set out in Reynolds v. Sims, these respects the trustee elections are like 377 U.S. 533 (1964). Thus, elections may the special purpose elections upheld in be held for special purposes and voter Salyer Land Co. v. Tulare Water Dist., 410 qualifications that might otherwise be U.S. 719 (1973) and Ball v. James, 451 U.S. invalid may survive when they limit 355 (1981). In both cases, the system for eligible voters to those who are electing directors of special purpose water disproportionately affected and the districts limited voting eligibility to government agency does not perform landowners on a proportional basis, fundamentally governmental functions. excluding others in the district. The Court concluded that by virtue of their limited purpose, including the districts' Rice nevertheless asks us to dismiss lack of normal governmental authority, the Salyer rationale entirely on account of and the disproportionate effect of their OHA's authority over funds that include a activities on landowners as a group, the twenty percent share of revenues from the ceded lands trust; the similarity between what OHA does for its beneficiaries and source for native Hawaiians and what the state otherwise does generally for Hawaiians, including § 5(f) revenue; to all citizens without regard to race; and the exercise control over property set aside to fact that OHA activities are of vital OHA for native Hawaiians and concern to all citizens of Hawaii. But we Hawaiians; to handle money and property cannot set Salyer aside altogether, for on behalf of OHA; to formulate policy Rice's points reflect frustration with relating to the affairs of native Hawaiians OHA--which is something we can do and Hawaiians; to provide grants for pilot nothing about in this case. Whether or projects; and to make available technical not the frustration--or OHA--is justified, and financial assistance and advisory the fact remains that public lands and services for native Hawaiian and Hawaiian funds have long since been committed in programs. Haw.Rev.Stat. § 10-5. The trust, and continue to be allocated in part, duties of the board are similarly for the purpose of benefiting the channeled. They are to develop a master Hawaiian peoples; they are the only plan for native Hawaiians and Hawaiians; peoples legally interested in how those to assist in development of other agencies' funds are handled; and for them to decide plans for native Hawaiian and Hawaiian who should administer the trust does not programs and services; to maintain an seem exceptionable under Salyer except inventory of, and act as clearinghouse for, for the fact, which we recognize, that the programs for native Hawaiians and qualification has to do with race instead of Hawaiians; to keep other agencies ownership of land, as in Salyer. For this informed about native Hawaiian and reason we do not regard Salyer as Hawaiian programs; and to conduct dispositive, but we cannot say that it has research, develop models for programs, no applicability whatever. apply for and administer federal funds and promote the establishment of agencies to serve native Hawaiians and Hawaiians. Nor may we ignore the reality that the Haw.Rev.Stat. § 10-6. voting restriction for trustees is rooted in 350 historical concern for the Hawaiian race, compelled to invalidate the voting going back at least to the Hawaiian restriction simply because it appears to be Homes Commission Act of 1920, carried race-based without also considering the through statehood when Hawaii unique trust relationship that gave rise to acknowledged a trust obligation toward it. native Hawaiians as a condition of admission to the union, and on to 1993, when Congress passed a Joint Resolution Accordingly, even though there is little "apologiz[ing] to Native Hawaiians on authority to guide application of the behalf of the people of the United States Fifteenth Amendment in a case such as for the overthrow of the Kingdom of this, we are persuaded that no violation Hawaii on January 17, 1893 with the exists. The Fifteenth Amendment participation of agents and citizens of the "squarely prohibits racially-based denials United States, and the deprivation of the of the right to vote," Laurence H. Tribe, rights of Native Hawaiians to American Constitutional Law, at 335 n. 2 self-determination." Pub.L. 103-150, 107 (2d ed.1988), and renders inoperative any Stat. 1510 (1993). In this sense, the provision of a state constitution that special treatment of Hawaiians and native restricts the right to suffrage to members Hawaiians reflected in establishment of of a particular race, see Neal v. Delaware, trusts for their benefit, and the creation of 103 U.S. 370, 389 (1881), but this isn't a OHA to administer them, is similar to the general election for government officials special treatment of Indians that the performing government functions of the Supreme Court approved in Morton v. sort that has previously triggered Fifteenth Mancari,417 U.S. 535 (1974). As we said Amendment analysis. Further, the voter of Mancariin Alaska Chapter,Associated qualification at issue here-- albeit clearly Gen. Contractorsv. Pierce, 694 F.2d 1162 racial on its face--does not exclude those (9th Cir.1982), preferential treatment that who ever had, now have, or ever can have is grounded in the government's unique any interest in the outcome of the special obligation toward Indians is a political election for trustees (at least not unless rather than a racial classification, even and until the whole trust scheme and though racial criteria may be used in administrative structure is invalidated). defining eligibility. Id. at 1168 n. 10. Under these circumstances, to permit only While we recognize that Mancariis Hawaiians to vote in special elections for distinguishable because Hawaiians are not trustees of a trust that we must presume exactly like Indians (for example, they was lawfully established for their benefit aren't organized in tribes and there isn't does not deny non- Hawaiians the right to an Hawaiian Commerce Clause in the vote in any meaningful sense. The special Constitution), (footnote ommitted) and election for trustees is not equivalent to a we do not regard either Mancari or Pierce as general election, and the vote is not for controlling,' both indicate that we are not officials who will perform general governmental functions in either a representative or executive capacity. Cf, 9 Although we questioned Mancarz's e.g., Lane v. Wilson, 307 U.S. 268 (1939) continuing vitality in light of Adarand in (striking down, under the Fifteenth Williams v. Babbitt, 115 F.3d 657, 663 (9th Cir.1997), and Rice believes Adarand until trumps both, we are bound by Supreme overruled, which neither Mancarinor Pierce has been. Court authority and our own precedent 351 Amendment, procedural hurdles to We obviously agree that there is a registering to vote in general elections); racial classification on the face of 5 Smith v. Allnght, 321 U.S. 649 (1944) 13D-3, and that it is suspect as such; but (state cannot set racial qualifications for we disagree for the reasons we have primary because the right to vote in a already explained that it is primarily racial primary is like the right to vote in a in context. Nor is the eligibility general election). Nor does the limitation requirement, strictly speaking, a in these circumstances suggest that voting preference of the sort that concerned the eligibility was designed to exclude persons Court in Adarand. Instead, it is more like who would otherwise be interested in the limitation of voting to landowners in OHA's affairs. Cf, e.g., Gomillion v. Salyer. We have no trouble understanding Lghfoot, 364 U.S. 339 (gerrymandering why Hawaii would want the people who city boundary to deny a vote to have an interest in the trust to vote for African-Americans who lived in the city trustees, and it is rational for the state to and otherwise would have had the right to make this decision in light of its trust vote in municipal elections, without any responsibilities for Hawaiians and native countervailing municipal function the Hawaiians. See Mancan, 417 U.S. 535; scheme was designed to further). Rather, Pierce, 694 F.2d 1162. However, even if it reflects the fact that the trustees' the voting restriction must be subjected to fiduciary responsibilities run only to native strict judicial scrutiny because the Hawaiians and Hawaiians and "a board of classification is based explicitly on race, it trustees chosen from among those who survives because the restriction is rooted are interested parties would be the best in the special trust relationship between way to insure proper management and Hawaii and descendants of aboriginal adherence to the needed fiduciary peoples who subsisted in the Islands in principles." (footnote ommitted) The 1778 and still live there--which is not challenged part of Hawaii law was not challenged in this appeal. Thus, the contrived to keep non-Hawaiians from scheme for electing trustees ultimately voting in general, or in any respect responds to the state's compelling pertinent to their legal interests. responsibility to honor the trust, and the Therefore, we cannot say that Rice's right restriction on voter eligibility is precisely to vote has been denied or abridged in tailored to the perceived value that a violation of the Fifteenth Amendment. board "chosen from among those who are interested parties would be the best way to insure proper management and adherence B to the needed fiduciary principles." 1 Regardless, Rice argues, the racial Proceedings of the Constitutional restriction on the right to vote for OIA Convention of Hawaii of 1978, Standing trustees violates the Fourteenth Comm. Rep. No. 59 at 644. Amendment (footnote ommitted) even if the Fifteenth Amendment isn't applicable. Given the fact that only Hawaiians Shaw indicates that racial classifications and native Hawaiians are trust on the face of a statute are immediately beneficiaries, there is no race-neutral way suspect, he emphasizes, and the to accord only those who have a legal classification here cannot survive for lack interest in management of trust assets a of any compelling justification under say in electing trustees except to do so Adarand. according to the statutory definition by 352 blood quantum which makes the beneficiaries the same as the voters. We therefore conclude that because Hawaiians and native Hawaiians have the right to vote as such, not just because they are Hawaiian, that the Equal Protection Clause does not preclude Hawaii from restricting the voting for trustees to Hawaiians and excluding all others. AFFIRMED. 353 SUPREME COURT ROUNDUP Justices to Weigh Race Banier in Hawaiian Voting The New York Times Tuesday, March 23, 1999 Linda Greenhouse In a case that mixes history, race and adopted after the Civil War to guarantee evolving constitutional doctrine, the that the freed slaves would have the right Supreme Court agreed today to decide to vote. It provides: "The right of citizens whether Hawaii may continue to deny of the United States to vote shall not be anyone who is not descended from the denied or abridged by the United States or original Hawaiians the right to vote for by any State on account of race, color, or the leadership of an agency that previous condition of servitude." administers tens of millions of dollars in He lost in both the Federal District public money. Court in Honolulu and m the United The agency is the Office of Hawaiian States Court of Appeals for the Ninth Affairs, set up under the state's Circuit in San Francisco, where a panel of Constitution in 1978 to oversee trust three judges wrote last June that the racial funds, for which most revenue comes voting restriction was "rooted in historical from former royal Hawaiian lands. The concern for the Hawaiian race" and office's nine trustees, who must justified "because Hawaiians are the only themselves be descendants of the native group with a stake in the trust" and in the Hawaiians, are charged with spending the money that the trustees administer. money on education, social welfare and That explanation did not satisfy Mr. other programs to benefit native Rice, and the question now is whether it Hawaiians. will satisfy the Supreme Court. Theodore Harold F. Rice is a native Hawaiian, B. Olson, a well-connected Washington in the sense that he was born in the lawyer recruited for the Supreme Court islands to which his great-great- appeal by Mr. Rice's lawyer in Kamuela, grandparents moved in the 19th century. John W. Goemans, told the Justices that But this is not what the state Constitution the appeals court's decision ratified "a means by Hawaiian, a term that signifies broad and patently offensive regime of not place of birth but race. racially segregated voting in the state of Hawaii." When Mr. Rice, a Cornell-educated rancher and polo player from the town of Clearly, the case, Rice v. Cayetano, Kamuela, in a remote corner of Hawaii's No. 98-818, got the Court's attention, Big Island, went to vote three years ago in provoking an unusually prolonged debate the statewide election for Office of among the Justices over whether to hear Hawaiian Affairs trustees, he was turned the appeal. away. Before today's announcement, the He sued the state under the 15th case had been under active consideration Amendment, one of the amendments at the Justices' weekly, closed-door 354 conferences since the beginning of the There were also these other year, suggesting that it was subject to a developments today as the Court returned degree of vetting far greater than the from a two-week recess. at this early stage, where the typical case Professors' Workload question is not how to decide a case but whether to hear it at all. The case will be The Court upheld an Ohio law that argued in October. both required state universities to set standards for the amount of time If the Justices perceive this case as professors should devote to classroom something of a hot potato, that is teaching and took the question of understandable. While no other state professors' workload off the table as a program resembles Hawaii's, the case subject for collective bargaining. raises far broader questions about making race a condition of eligibility for public The 8-to-1 decision overturned a benefits. ruling by the Ohio Supreme Court, which held that the 1993 state law violated the While it is certainly possible to professors' constitutional right to equal structure a narrow decision specific to protection because no other public Hawaii, as the Ninth Circuit did, it is also employees were barred from negotiating possible to turn this case into a with the state over their workload. Ohio battleground of the ongoing affirmative appealed the ruling. action wars. A series of recent Supreme Court opinions have subjected The Court's unsigned opinion today, government programs that offer special from which only Justice John Paul Stevens benefits on the basis of race to the same dissented, said the state law was a rigorous constitutional scrutiny, no matter straightforward economic regulation that which race is the beneficiary. was constitutional as long as it had a rational basis. The state's goal was "to Another interesting element in the increase the time spent by faculty in the case is a 1973 Supreme Court opinion on classroom," the opinion said, adding that which the appeals court based a the law "was an entirely rational step to substantial part of its analysis. That case, accomplish this objective." Salyer Land Co. v. Tulare Lake District, upheld a California law that gave land Justice Stevens objected that the owners, and no one else, the right to vote Court should not have issued a decision for the management of water storage without full briefing and argument. The districts. Justices had never formally granted review in the case, Central State University v. were "special purpose" These American Association of University which property owners had by elections in Professors, No. 98-1071. Justice Stevens the greatest stake, then-Associate far said that while he had not reached a for Justice William H. Rehnquist wrote conclusion, the Court's analysis was the majority. Three liberal Justices, "mechanistic" and ignored the issues of William 0. Douglas, William J. Brennan academic freedom that were present in the vigorously Jr. and Thurgood Marshall, case. dissented, on the ground that renters, sharecroppers and other nonowners could Justice Stevens also added a sly be injured by mismanagement of the observation. "While surveying the flood water supply, and "all should have a say." of law reviews that cross my desk," he said, "I have sometimes wondered 355 whether law professors have any time to Prosecutor's Comment teaching their students about the spend The Court accepted an appeal by New law." York State from a ruling that a Queens A majority of Ohio's legislators prosecutor violated a defendant's evidently had "a similar reaction," he constitutional rights by telling the jury that added. the defendant had derived a "big advantage" from sitting through the Violence Against Women testimony of witnesses at his rape trial. Without comment, the Court turned The implication of the comment was that down a constitutional challenge to a the defendant, Ray Agard, had thus been provision of a Federal law, the Violence able to tailor his own testimony to what Against Women Act, that makes it a had gone before. Federal crime to cross state lines for the The United States Court of Appeals purpose of injuring a "spouse or intimate for the Second Circuit had granted Mr. partner." Agard's petition for a writ of habeas The appeal was brought by the first corpus on the ground that the comment woman to be convicted under the 1994 in effect had compromised his right to law, a Russian immigrant who was attend his own trial. In its appeal, convicted and sentenced to life in prison Portuondo v. Agard, No. 98-1170, the for conspiring in the murder of her state asked the Justices to resolve what it estranged husband, Yakov Gluzman. Mr. said was widespread confusion over the Gluzman, also an immigrant from Russia, propriety of prosecutors' comments on was a successful medical researcher when defendants' conduct or demeanor in the his wife, Rita Gluzman, and a cousin courtroom. traveled from New Jersey to New York to Sibling Adoption kill him in his apartment in Pearl River. Without comment, the Court turned Mrs. Gluzman's appeal, Gluzman v. down an appeal filed on behalf of a 4- United States, No. 98-1326, argued that year-old foster child who was separated Congress lacked constitutional authority from his 6-year-old sister for eventual to turn a crime of domestic violence into a adoption by an aunt. The children's Federal offense. The lower Federal courts parents had been found unfit, and a had rejected that challenge. Massachusetts court approved a request The Justices are likely to have another by an aunt in New Jersey to rear him. The chance to consider the issue. Earlier this appeal, Hugo P_ v. George P., No. 98- month, the Federal appeals court in 7565, argued that the custody order Richmond declared another provision of separating the siblings violated the boy's the Violence Against Women Act constitutional right to "family integrity." unconstitutional, and a Supreme Court appeal is planned in that case, Brzonkala v. Virginia Polytechnic Institute. Copyright C 1999 The New York Times Company 356 WHEN RACE DETERMINES WHO GETS TO VOTE The Christian Science Monitor Tuesday, April 6, 1999 Alex Salkever, Special to The Christian Science Monitor To native Hawaiians, the Office of Bureau of Indian Affairs (BIA) social Hawaiian Affairs is a crucial part of the programs were never made. state's effort to right past wrongs. To at In addition, Hawaiians never entered least one of Hawaii's other residents, it's into any treaties with the federal creating new ones. government - a legal platform that Indian The Office of Hawaiian Affairs groups have used to gain compensation or (OHA) manages more than $ 300 million access to natural resources. of public money and administers a variety Many native Hawaiians say this case of social programs. But its trustees are will help them redress some of these elected in a vote open only to native inequalities. "The No. 1 issue with this Hawaiians. lawsuit is whether or not Hawaiians are Sixth-generation Hawaii resident considered to have political status," says Harold Rice says this practice is OHA trustee Clayton Hee. If the court discriminatory and unconstitutional, so sides with OHA, "the next logical step is he's suing the state. After years of appeals, for the Hawaiians ... to establish their the United States Supreme Court recently sovereign rights before the US Congress. agreed to hear the case. Every facet that is enjoyed by other native peoples should be enjoyed by Hawaiians." If it sides with the disgruntled Big Island rancher when it takes up the case Such logic is only fair, OHA later this year, the ruling could have a supporters add, because native Hawaiians profound impact on the rights of native - who make up as much as 20 percent of groups both here and on the mainland. the state's population - share many of the same troubles as their "If the court reverses, it could raise mainland indigenous counterparts. High rates of fundamental questions about the ability of poverty, mortality, drug abuse, and any native group to govern itself," says imprisonment make them the most a University of Hawaii law Jon Van Dyke, troubled ethnic group in Hawaii. professor who has represented OHA on the case. OHA was set up in 1978 to help alleviate some of these problems. It was For native Hawaiians, the case is a also intended to return some of the power crucial step in their long road toward stripped from native Hawaiians when the sovereignty. Their status with the federal Kingdom of Hawaii was overthrown by a government has been vague for decades. US-backed group of white merchants and Unlike other indigenous groups in the missionaries in 1893. US, native Hawaiians have never had a During the past two decades, millions claims court to address their grievances, of dollars have poured into OHA coffers and special provisions to set up from the state general fund and from reservations or include Hawaiians in 357 revenues on "ceded lands," lands held in and 15th Amendments, which promise trust by the state for the benefit native equal protection under the law and the Hawaiians and the general public. Under right to vote regardless of race. native Hawaiians are entitled to state law, But the state and the native Hawaiians 20 percent of the revenues. Negotiations note that a 1974 United States Supreme are currently under way to determine the Court ruling allows the BIA to give hiring extent of additional state obligations to preferences to native Americans because OHA, which could range as high as $ 1 the BIA's job is to serve and improve the billion. status of native Americans. OHA'S access to this money is what "Because the native people have their has upset Mr. Rice. If OHA can spend own resources and their own trust assets, state money, then everyone in the state they should be allowed to govern these should have a say in how it's spent, he assets themselves," says Professor Van says. Dyke. "Mr. Rice contends that he was denied The fact is, though, the Supreme the right to vote in an election held by the Court has consistently ruled against State of Hawaii to elect individuals who indigenous groups during the 1990s. would make decisions concerning public resources in Hawaii, and he was denied Justices Clarence Thomas and the right to vote based on his race or Antonin Scalia are opponents of national origin," says Theodore Olson, preferential treatment of virtually any Rice's attorney. "The courts never said type. And with the pendulum swinging that the people who moved into Utah and against affirmative-action programs, there settled Utah can deny equal rights and is a chance that the Supreme Court could privileges to people who moved in revise its 1974 ruling, upending the legal afterwards." bulwarks that have been used to build programs for native Americans. Rice's attorney asserts that, unlike Indian tribes, native Hawaiians are not sovereign political entities, but ancestral Copyright C 1999 The Christian Science residents. Thus, OHA elections that Publishing Society exclude Hawaii residents violate the 14th 358 AN AMERICAN RACE LAW The New York Post Tuesday, May 25,1999 Michael Meyers IS Hawaii still part of the United whose land (then under the control of a States, or some outpost where non- monarchy) the United States stole. "indigenous" people are second-class The twist is in how a federal district citizens? court and an appeals court managed to The case is headed to the U.S. uphold this race test: They decided that Supreme Court. It centers on Harold Rice, the category "Hawaiian" was not a racial a Hawaiian who went to vote in a classification at all but a political statewide election - and was turned away. classification: Hawaii, the courts claim, is A state law (and a 1978 amendment to the treating native Hawaiians like American state's Constitution) disqualified him from Indian tribes (who do have special voting because, as a white man, he is not a constitutional protection). "native Hawaiian." No federal law, and nothing in the No matter that Rice is Hawaiian, U.S. Constitution, designates native whose ancestors served in the Hawaiian Hawaiians as Indians. The judges just Legislature before annexation. Because his made it up. In so doing, they've blood is not 50 percent "Hawaiian," the functionally repealed (for that statewide law deems him not to be a red-blooded election) the 14th and 15th Amendments, native and therefore he's ineligible to vote which are plain and unequivocal in in a statewide, government-administered guaranteeing every American citizen the election over a matter that involves a trust equal protection of the laws and the right for the benefit of "real" Hawaiians. not to be discriminated against in voting on the grounds of their race." Blood tests for voting? There's more to this outrage. Any Hawaiian - white, Last Saturday, the Executive Board of black, yellow, brown - who can't trace his the American Civil Liberties Union chose or her roots to the land before 1778 not to file a brief on the side of the (when "Westerner'' Captain Cook arrived "native Hawaiians." That decision was in the islands) is, well, unauthentic. Only achieved by the ACLU's savvy and sufficiently-blooded Hawaiians may vote politically courageous president, Nadine for the trustees of the state Office of Strossen. But the motion failed on a tie Hawaiian Affairs, all of whom must be vote - signaling the power of bad law and "Hawaiian" as well. confused thinking about race in this showdown. For the benefit of the indigenous population, the office administers lands By imposing a racial test in the name ceded back to Hawaii and the funds of protecting the interests of native derived therefrom. (It also disburses Hawaiians, Hawaii exposes a contempt for monies from the state's general coffers.) American-style constitutional rights and These reparations, say the politically "Western" thinking that borders on correct in Hawaii, are due to the people 359 official racial separatism and secessionist Harold Rice is one American who fever. won't let race divide his state and our nation. If Hawaiians History divides. Yes, lands were stolen are lucky, our Supreme Court from natives, just as other peoples were will strike down their racial voting stolen from their native land. But we're all scheme, and give Mr. Rice back his standing and heritage as a full- here now, together, for better and worse, enjoying the blessings of freedom and blooded Hawaiian and American citizen. equality as we have decreed it in our federal Constitution. Copyright C 1999 N.Y.P. Holdings, Inc. All rights reserved. 360 RESURGENT RACISM IN HAWAII? The Washington Times Tuesday, March 30, 1999 Bruce Fein Chief Justice of the United States The Organic Act of 1900 transferred the Harlan Fiske Stone sermonized in lands to the territorial government of Hirabiyashi vs. United States (1943) that, Hawaii for public works and for other "distinctions between citizens solely public purposes. because of their ancestry are by their very In 1920, however, racism crept into nature odious to a free people whose the law with the Hawaiian Homes institutions are founded upon the doctrine Commission Act. It set aside 200,000 of equality." It is a sermon too readily acres of public lands for leasing at forgotten, even with the graphic reminder nominal rents to "any descendent of not of Kosovo and a burgeoning of other less than one-half part of the blood of ethnic conflicts fueled by generations of races inhabiting the Hawaiian Islands discrimination. previous to 1778." Its inspiration was a The case of Rice vs. Cayetano, plunging number of full-blooded pending in the United States Supreme Hawaiians and a racially stereotypical Court, is worrisome on that score. belief that the Hawaiian race needed Underlying the dispute is Hawaii's rehabilitation by a return to the land. dedication of public largesse on "native Hawaiian statehood arrived with the Hawaiians" and "Hawaiians" to the 1959 Admission Act. It stipulated that exclusion of its other citizens. public lands held by the United States Reminiscent of Nazi Germany's conveyed to Hawaii pursuant to section Nuremburg laws, Hawaiian is defined as 5(b) were to be held in trust for fivefold "any descendent of the aboriginal peoples purposes, including "the betterment of inhabiting the Hawaiian Islands which conditions of native Hawaiians." In 1978, exercised sovereignty and subsisted in the Hawaii established the Office of Hawaiian and which Hawaiian Islands in 1778, Affairs to hold 20 percent of section 5(b) peoples thereafter have continued to property in trust for native Hawaiians and reside in Hawaii." Native Hawaiians are Hawaiians. Caucasians who pay taxes and defined as "any descendent of not less otherwise assume the burdens of than one-half part of the races inhabiting citizenship need not apply. OHA is the Hawaiian Islands previous to 1778...." governed by a board of trustees whose The Republic of Hawaii sought members must be Hawaiian and who are annexation to the United States, which elected solely by Hawaiian voters. accepted the overture in the Annexation Caucasians are blacklisted because of the Act of 1898. It provided that revenues happenstance of ancestry. land ceded to the from 1.8 million acres of It would seem that the OHA and its United States would be devoted solely to race-based beneficiaries flagrantly violate educational and other public purposes on Chief Justice Stone's teaching that behalf of all Hawaiian Island residents. government distinctions that pivot on 361 ancestry are odious to a free people. They the overthrow of the non-democratic are instantly suspect under the Fourteenth Kingdom of Hawaii in 1893, five years and Fifteenth Amendments to the United before it was annexed. exaltation of States Constitution. The Both reasons are wrongheaded. and native Hawaiians by the Hawaiians Caucasian citizens of Hawaii may be might be justified if calculated to OHA intensely concerned with the operations of past discrimination, but no overcome the OHA, for instance, whether it have been made either by such findings promotes assimilation or separate Hawaii or any court. It is Congress, identities for Hawaiians or native racism for the sake of racism political Hawaiians through housing, education or inclined to glorify aboriginal correctness cultural events. They might be rightly and aboriginal life at work. peoples concerned, like Ben Franklin, that if we do Harold F. Rice, a caucasian excluded not all hang together, then assuredly we from voting for the OHA board, will all hang separately. Similarly, childless challenged the constitutionality of citizens are entitled to vote in school Hawaii's race-based voting register. The board elections without discrimination Fifteenth Amendment prohibits racial because the future of the nation rests on discrimination in the franchise, and the the education of its youth. Fourteenth Amendment enjoins the same Finally, to anchor Hawaii's racial result by dint of its equal protection discrimination on a perceived historical clause. The United States Court of injustice in 1893 would be like Yugoslav Appeals for the Ninth Circuit, however, President Slobodan Milosevic justifying rebuffed Mr. Rice's attack. Writing for a Serb discrimination against Kosovars panel of three, Judge Pamela Ann Rhymer because of the Serb's misfortune at the the OHA board insisted that since hands of the Ottoman Turks in the 1389 dedicated public resources only to Battle of Kosovo. Walking even an inch Hawaiian Hawaiian and native down that road of historical grievances is nothing wayward beneficiaries, there was miles too far, and the United States others from voting for about excluding all Supreme Court should loudly say so. its members. According to Judge Rhymer, caucasians hold no interest in how public Bruce Fein is a lawyer and free-lance funds are employed for the betterment of writer specializing in legal issues. Hawaiians and native Hawaiians. Moreover, the jurist maintained, the United States apologized in 1993 for the Copyright C 1999 News World participation of its citizens and agents in Communications, Inc. 362