Ricci, Shelby County, Hobby Lobby. We all know these cases. We all know how they attacked affirmative action, voting rights, and women’s rights. But what about Gonzaga, McCleskey, and Gebser? Not many lawyers followed these cases. The media virtually ignored them. These are the “quiet cases” that may be even more damaging than those in the headlines because they chip away at our civil rights, our access to the courts, and our remedies for violations without our even realizing it. This is what makes them so dangerous. They are the Supreme Court cases that lurk in the shadows.
This issue of Human Rights magazine examines some of the lesser-known cases that have continued the Supreme Court’s steady assault on civil rights and access to justice. The articles address cases that limit private rights of action, limit remedies, and set higher standards of pleading and proof. They discuss how the Court is expanding immunity to make it easier for government actors to avoid accountability. And they examine the elephant in the courtroom: Why is the courthouse door more often slammed shut to people of color?
What’s going on in the Supreme Court when we aren’t paying attention?
Let’s start with Gonzaga. How did a case about educational privacy weaken the ability to enforce civil rights? The Court used it to narrow the kinds of federal statutes that injured parties can enforce through 42 U.S.C. § 1983.
Section 1983 is used to enforce constitutional rights such as free speech and equal protection. But its plain language states that persons who act under color of any “statute, ordinance, regulation, custom, or usage” to deprive anyone of rights, privileges, or immunities secured “by the Constitution and laws, shall be liable to the party injured.” Which federal laws can be enforced through § 1983? The statute does not say. If Congress did not limit coverage, shouldn’t all statutes be enforceable? The Supreme Court has determined that it should decide, and its decisions have changed with the Court.
In 1980, the Court confirmed in Maine v. Thiboutot, 448 U.S. 1 (1980), that the “and laws” language in § 1983 can be used to enforce federal statutes. In 1987, in Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418 (1987), the Court held it can be used to enforce agency regulations. In 1990, the Court held in Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), that health care providers can enforce the Medicaid Act and its regulations through § 1983. Section 1983 was becoming a powerful tool to enforce and obtain monetary damages for violations of federal law. But as the Supreme Court changed, so did § 1983 jurisprudence. The Court began to limit enforcement only to federal statutes it believed created enforceable rights for specific plaintiffs to enforce. It explained away other federal statutes as merely suggestions or policy statements—not enforceable rights. Blessing v. Freestone, 520 U.S. 329 (1997).
The Supreme Court extended its attack on § 1983 in Gonzaga University v. Doe, 536 U.S. 273 (2002). There, it held that if a student had no remedy against his college when it violated the Federal Educational Rights and Privacy Act (FERPA) by disclosing his educational records, the student has no remedy against the college. He could not enforce his privacy right through FERPA itself or through § 1983—even though students are the intended beneficiaries of the law. The Court narrowed the availability of § 1983 so much that it now mirrors the rigorous standards applied to implied rights of action. Professor Mank’s article explains the new, higher standard.
The Court also has limited recovery under § 1983 by expanding the judicially created defense of qualified immunity, as outlined in Professor Chemerinsky’s article. By becoming more willing to find that rights are not “clearly established” or that it is reasonable for a state actor not to know what they are, the Court makes it more difficult to hold violators accountable for their actions.
Professor Chen explains the shocking application of the doctrine in Safford Unified School District No. 1 v. Redding, 557 U.S. 364 (2009). There, the Court awarded qualified immunity to a principal who stripsearched a 13-year-old girl to see if she had possessed ibuprofen. Over a vigorous dissent by Justice Ginsburg, the Court concluded that the behavior wasn’t so shocking that a principal would reasonably know that it violated the Fourth Amendment.
The Court’s growing eagerness to find qualified immunity even in seemingly obvious cases like Safford has given lower courts permission to dismiss cases before they reach the merits. Sadly, it also sometimes leads state actors to dismiss the underlying civil rights when they deal with the public.
The Court has created barriers to court access by changing the meaning of the federal pleading rules. Professor Reinart’s article explains that it is no longer enough for plaintiffs merely to put defendants on notice about the claims against them as stated in Rule 8 of the Federal Rules of Civil Procedure. After Iqbal and Twombly, plaintiffs now must provide detailed, specific facts to support their claims and must show how the claims are plausible—all before engaging in discovery. This change dramatically harms plaintiffs in civil rights and employment discrimination litigation because defendants usually have control over the evidence needed to specifically plead and prove such claims. As a result, many meritorious cases are never heard.
The Court has led a sustained assault on disparate impact theory. In 1971, the Court recognized in Griggs v. Duke Power Co., 401 U.S. 424 (1971), that not all discrimination is overt. Instead, employers discriminate by adopting job requirements that the disfavored group will have trouble meeting, even though the requirements have nothing to do with the job itself. The Court confronted this behavior by applying a disparate impact theory of discrimination. If a test, job requirement, or other factor disproportionately excludes a protected group, then the employer must explain why that factor is needed as a business necessity.
Disparate impact theory became an important tool for addressing more hidden discrimination.
Administrative agencies and the courts began applying disparate impact analysis to other statutes, including Title VI of the Civil Rights Act of 1964, the Fair Housing Act of 1968, and the Age Discrimination in Employment Act of 1967.
Once again, a changing Court led to a change in jurisprudence. In 1989, the Court threatened the future of disparate impact theory in Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989). Congress responded with the Civil Rights Act of 1991, which expressly amended Title VII to include disparate impact theory. Despite this clear expression of congressional intent, the Court, in Ricci v. DeStefano, 557 U.S. 557 (2009), attacked the disparate impact theory by saying that its application amounted to intentional reverse discrimination.
In other holdings, the Court ended the ability to bring disparate impact cases under Title VI in Alexander v. Sandoval, 532 U.S. 275 (2001), and refused to recognize disparate impact theory under § 1981 race cases and § 1983 equal protection cases.
Few lawyers outside the criminal defense bar have ever heard of McCleskey v. Kemp, 481 U.S. 279 (1987), but as Jeffrey Kirchmeier explains in his article, it has enabled rampant race discrimination in our criminal justice system to go unchecked, especially in the application of the death penalty. Did McCleskey send out a green light to discrimination in the criminal justice system?
These cases highlight the Court’s steady assault on the ability of minority plaintiffs to bring race discrimination cases. Yet, as Stephen Gottlieb notes in his article, the Court seems to find excuses for discrimination when minorities are the plaintiffs, while it seeks ways to find “reverse” discrimination when whites complain. Are a majority of the justices on the
Court racist or just clueless? Why is there such a disparity?
As Eric Segall’s article discusses, perhaps the Court is out of touch with the real world. The Court is an insular institution of privileged lawyers who surround themselves with mostly white clerks from privileged backgrounds and a small group of law schools. Court cases are argued by another small group of appellate specialists, most of whom were Court clerks. Can this small group of people from the same schools really understand what it is like to be a poor African American in the criminal justice system? Can they understand the importance of affirmative action or disparate impact theory? Would cameras in the courtroom expose these biases to the public?
The Court’s hostile views aren’t limited to race cases. In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court refused to apply well-settled Title VII sexual harassment standards to Title IX. Instead, it adopted a “deliberate indifference” theory that makes it more difficult to protect children than adults. As Fatima Goss Graves and Adaku Onyeka-Crawford explain in their article, employers are responsible if supervisors sexually harass employees. They are responsible if co-workers harass each other if the employer “knew or should have known” about the sexual harassment. Employers can’t put their heads in the sand to avoid liability. Yet, that is exactly what schools can do under Title IX after Gebser and Davis.
Under the new test, a school is not responsible for sexual harassment or even assault against children unless the children provide the right authority figure with notice of the specific harassment and the school responds with deliberate indifference, a high standard that lower courts are quick to find does not exist even in the most egregious situations. Students must also explain how enduring the harassment denied them equal access to education. Why would the Court make it more difficult for children to demand protection and accountability in schools than adults receive in the workplace? Would the outcome have been different if more women had heard the cases?
Many commentators have written about how the Court has revived Jim Crow and even pre–Civil War legal theories to continue its assault on civil rights. But Yolanda Rondon’s article explains how the Court has revived Korematsu in all but name after 9/11.
American jurisprudence has historically expanded civil rights and access to justice, but the articles in this issue show that we are sliding backward. Forces on this Court are engaged in a steady assault on our rights and remedies. They are limiting our access to the courts and thus to justice itself. The assault continues outside the headlines. It continues in the cases we aren’t watching . . . in the cases lurking in the shadows.