Back to Bakke: First Circuit Finds No Error in Harvard’s Admissions Practices


Students for Fair Admissions v. President and Fellows of Harvard College, No. 19-2005 (1st Cir.)  November 12, 2020.


An advocacy group, questioning whether Harvard College’s admissions practices were unlawfully racially based, brought suit in federal district court.  The group was unsuccessful there and that result has not been disturbed on appeal.  

In general, racial ‘balancing’ in admissions practices is impermissible, as it is little other than impermissible racial “quota” practices by another name, but the same ratio of applicants to admissions over time does not necessarily reflect a quota.

Over a ten year period, Harvard’s racial percentages fell within a narrow range.  Harvard utilized one page summaries to illustrate the racial composition of classes.  

The court found that the number of admitted Asian applicants increased from 3.4% in 1980 to 20..6 in 2019 while applicants ranged from 4.1% in 1980 to 22.5% in 2014.  Without elaboration, the court concluded that this is inconsistent with a quota.  The court observed that the proportion of asian applicants to Asian admissions remained consistent over time.  

The court observed that stasis in the composition of classes reflects stasis in the pool of applicants.  Without more, the First Circuit found no error in the district court’s determination that neither quotas or balancing were in play in Harvard’s admissions procedures.  

The First Circuit found unobjectionable Harvard’s continuous monitoring of admissions as permissible in supporting its diversity goals without evidencing balancing or quota practices

The student advocacy group argued that Harvard applied race as a “mechanical plus” precluding individual considerations and permitting race as a decisive factor in admissions.

Where race can benefit any applicant and where race is individualized, mechanica arguments fail.  The court observed that racial diversity is not exclusive and has no more prominence than other diversity in Harvard’s contextualized admission practices.  The court found Harvard’s practices, which do not employ an impermissible fixed “points” practice, to be holistic with race, neither mechanical nor decisive.

The First Circuit upheld rejection of the argument that race was decisive because other racial groups were admitted in greater numbers than Asians of high academic achievement.  

The First Circuit noted that Supreme Court precedent has permitted racial impact greater than that evidenced by Harvar.  In one case, eliminating race as an admissions criteria would cause a 72.4% decrease in minority admissions, while in this case the change would be 45%, less than that permitted in the first case. 

The First Circuit stressed that race cannot be decisive for minimally qualified applicants but in this case race is not decisive for highly qualified applicants in a competitive process.  

The First Circuit rejected the perception of the United states government as amicus that Harvard considers race at every step of its admissions process.  The First Circuit rejected the United States’ premise that race may be considered only at only point in the admissions process and found that holistic considerations, including race, may be part of the admissions process throughout.  

Similarly, the First Circuit found unavailing the argument that the Supreme Court has found that race as a consideration must have a  stopping point because this exhortation was never mentioned in subsequent Supreme Court opinions.  

Precedent has never required universities to define an end point for the utilization of race as an admissions criteria and there is no error in Harvard’s not setting a ceiling on admissions.

Harvard’s having crafted, considered, and yet rejected as unworkable proffered alternatives to race in its admissions process does not mean that its evaluations were defective or inadequate.  

The First Circuit rejected the claim that Harvard impermissibly treated Asian students less favorably than others.

The presence of some subjectivity in admissions will not establish intentional discrimination, the First Circuit found, citing early discussion fo flexible admissions systems.  Any risk of subjective bias training the admissions process is mitigated by the requirement that admission cannot occur except through the vote of a majority of forty members of an admissions committee.  

The appellate court found unobjectionable the district court’s failure to find flawed as stereotypical references to Asians as “quiet,” “flat,” or other terms where such language was used concerning applicants from other groups. 

The court found no error in changes to admissions rating guidance to employees that race may not be considered an admissions rating criteria, nor was an increase in Asian admissions after the initiation of litigation as guidance is reviewed probative of discrimiation, as admissions guidance is reviewed and revised annually and Asan admissions have been increasing steadily over time.

Worries over inclusion or exclusion of personal ratings were dismissed by the court although the student advocacy group attempted to demonstrate that while inclusion of personal rating did not impact the likelihood of an Asian applicant’s admission the exclusion of this information would have a negative impact.

The essence of correlation between the rating and admission does not compel a finding of causation or ‘influence.’  

The district court did not err in considering several sources of evidence indicating that correlation but not causation was established.  The First Circuit upheld the district court’s conclusion that whether or not the personal rating is included in admission has no material effect, varies over time, and is not always negative.  

The district court opined that implicit bias was possible for unsupported and speculation about the explanation for significant variance in modes. The First Circuit found this exploration would not compel setting aside, as plain error, the conclusion that there was no intentional discrimination.  

Students for Fair Admissions v. Harvard College, No. 19-1-01A (1st Cir.) November 12, 2020

Faith in the Not So Hot Zone: Second Circuit Denies Synagogues and Churches Relief from New York’s Pandemic Measures

Agudath Israel of America, et al. v. Cuomo, No. 20-3572; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3590 (2nd. Cir.)  Stay pending appeal denied on November 9, 2020.

New York has restricted gatherings by size according to perceived geographic intensity of COVID-19 infections.  Religious groups have appealed a federal district court’s denial of injunctive relief that would preclude enforcement of New York’s order.  

Noting first that the Jewish petitioners failed to request a stay pending appeal in the federal district court, the Second Circuit then denied relief from operation of the pandemic measures pending appeal to Jews and Catholics alike

The Second Circuit commenced by stating that strict scrutiny does not apply to neutral and generally applicable laws.  The religious groups have been unable to establish that the pandemic restrictions are not neutral.  The restrictions on gatherings affect religion and secular groups similarly, and are premised on the prevalence of infection.  

The Supreme Court recently denied similar relief, the Second Circuit judges found, and the dissent in the appeal in this case has not persuaded the deciding justices that the standard of “reasonableness” at the time of the issuance of the pandemic orders must be viewed in light of changed circumstances. 

Dissenting Judge Park offered that the deciding judges have ruled based on a skewed perception of the zones.  The zone restrictions are not neutral.  Within zones only religious institutions remain restricted while “essential” operations are not.  

The measures not only specifically single out religious entities for special treatment but they also impose burdens that are substantially heavier than those imposed on other entities, in violation of the Free Exercise Clause.

The overtly different treatment of religious groups with an unmistakably disparate impact on these groups cannot be other than intentional. This is supported by the governor’s threat to close Orthodox Jewish institutions should they refuse to comply.

The dissent rejected the Governor’s argument that only rational basis review is needed as in the Governor’s view religious groups are treated more rather than less favorably than others,

The Governor’s position concedes non-neutrality, the dissenting judge observed. 

In the dissent’s view, the characterization of businesses as ‘essential’ and religious entities as ‘inessential’ facially targets religion.  Strict scrutiny is required as more than incidental burdens are evident.

The recent Supreme Court summary decision concerning California’s pandemic measures is not precedent, the dissent stated, because such orders are precedentail only where decided issues are identical.  The standards for relief in the Second Circuit and the temporal considerations are significantly different. 

New York has maintained the same restrictions since the inception of the pandemic notwithstanding marked reduction of disease.  

Jacobson v. Massachusetts, 197 U.s. 11 (19050 lacks the significance the Governor wishes it had, as Jacodbson was decided before the First Amendment was incorporated against the states and did not concern free exercise.   

Just as Jacobson does not support deference to indefinite exercise of emergency powers, but rather demands consideration of constitutional constraints, the facts of this case show that the absolute limits imposed on religious gatherings are not narrowly tailored.

The zone restrictions are the same — ten persons — for churches that can hold one thousand persons and those that can hold forty persons and the additional identified risks of singing or chanting make assumptions about religious gatherings not applicable to others.

The court has issued its briefing schedule for the merits with hearing to be scheduled as early as December 14, 2020. 

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020)

Keep Your Shirt On! Wisconsin Students Successfully Argue that the First Amendment Protects Wearing Controversial T-Shirts in School


N.J. ex rel. Jacob v. Sonnabend, No. 20-C-227; Lloyd v. Kaminski, No. 20-C-276 (E.D. Wis.) November 6, 2020.


Two Wisconsin students attending separate schools came to school wearing clothing advocating individual gun rights.  School authorities took action against the students for violating the schools’ dress codes.  One school rejected a parent’s attempt to provide an alternative t-shirt advocating patriotism.  

In 1969, the Supreme Court recognized that students have some protected expressive rights, the denial of which must be supported by evidence that the expression in question materially interferes with school functioning.  Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969). 

In this case the schools did not focus on disruption but argued that the shirts were not protected because no particularized message was conveyed and some messages were advertisements.

The students assert that even if the shirts were commercial they nonetheless merit First Amendment protections.

While clothing itself is not generally protected, the court has rejected the school’s view that a particular and recognizable message must be present for First Amendment protections to attach.  The court noted that while one shire did contain commercial elements, the message concerning the right to bear arms was clear.  The court also rejected the argument that the message was not clear because the messages themselves are what precipitated the school’s intervention.

The shirts are entitled to First Amendment protection, the court concluded, but not absolute protection. The dimensions of any proper time and place restrictions remain open for exploration, but judgement that constitutional protection is lacking is denied.  

N.J. ex rel. Jacob v. Sonnabend (E.D. Wis. 2020)

When Civil Rights and Tort Wrongs Collide: Supreme Court Directs Fifth Circuit to Seek State Court Guidance on Liability for Injury Incurred at Protest

McKesson v. Doe, No. 19-1108, 592 U.S. _____ (S. Ct.)  November 2, 2020.


During an event protesting a police shooting in Baton Rouge, Louisiana, protesters blocked the highway in front of police headquarters. One protester threw concrete or a rock at a police officer who was clearing the highway. Having lost teeth and suffered brain trauma, the officer sued the protest event organizer.

A federal trial court dismissed the case, finding that the First Amendment barred the action A divided Fifth Circuit revered, finding some possibility for recovery under Louisiana tort law.

The Fifth Circuit did not attach precedential value to a Supreme Court case establishing that there is no liability for speech related violence unless it was deliberately intended.

The Fifth Circuit did not find the First Amendment to be a ban to tort recovery. Where petitioner directed obstruction of a highway and if the attack on the police officer was a consequence of the petitioner’s activity, the potential for tort liability could be found.

The Fifth Circuits’ dissent denounced the result, observing that a new tort of “negligent protest” could not be squared with the First Amendment.

Rehearing en banc was not granted, its denial accompanied by multiple opinions.

Petitioner McKesson asked the Supreme Court to overturn the Fifth circuit because liability for violence during protected activity must be closely circumscribed. McKesson argued that his activity was protected even if it was a misdemeanor and he had no relationship to the protester who injured the officer.

The Supreme Court has concluded that the Fifth Circuit’s analysis cannot be supported unless state law would support the action. Certification of the novel tort law question to the Louisiana Supreme court prior to ruling on any Constitutional question would have been prudent.

The Supreme Court entered a “GVR” order, granting the petition for certiorari, vacating the first Circuit judgment, and remanding to the Fifth Circuit for further proceedings in accordance with the Supreme court’s opinion.

McKesson v. Doe, No. 19-1108 (S. Ct.) November 2, 2020

Called to Congregate: Federal Court Forbids Enforcement of Current Public Gathering Restrictions Against Capitol Hill Baptist Church


Capitol Hill Baptist Church v. Bowser, Mayor of the District of Columbia, No. 20-02710 (TNM).  Order granting preliminary relief entered October 9, 2020.


The United States District Court for the District of Columbia has enjoined enforcement of the District of Columbia’s prohibitions on certain public gatherings during the COVID-19 pandemic because those restrictions may be found to violate the Religious Freedom Restoration Act of 1993 (“RFRA”) because the rules substantially burden the free exercise of religion and because the District of Columbia has not demonstrated that sweeping pandemic-related measures, designed and enforced unevenly, are the least restrictive means of ensuring public health.

At the outset of the perceived public emergency precipitated by the contagious COVID-19 virus, the Mayor of the District of Columbia promulgated orders restricting public gatherings.  Over time some restrictions have been relaxed, permitting some resumption of restaurant commerce, for example, while others, such as those restricting the size of gatherings, have not been.  And notwithstanding the restrictions, the District has permitted and the Mayor has participated in, sizable protest gatherings.

Capitol Hill Baptist Church believes that its congregants are biblically bound to gather in person weekly, a practice begun in 1978 and continuing until March of 2020, with a brief interruption during the influenza outbreak of 1918.

Capitol Hill Baptist Church has asserted, and a federal district judge has agreed, that the District of Columbia’s current prohibition on indoor or outdoor gatherings of more than 100 persons, even if masked and ‘socially distancing’ substantially burdens congregants’ religious freedoms.

It is no answer, the Court has found, that substitutes for gatherings may exist or that the congregation has left the District of Columbia in order to gather, precluding the attendance of some who are without transportation.  

The “substitution” arguments are unavailing, the court concluded, as they do not fairly demonstrate that the District of Columbia has enacted the least restrictive means of ensuring public health.

The questions to be asked in RFRA review are not confined to generalities but to the impact of burdens on individuals as well as institutions.  

The government cannot meet its burden where it has freely abandoned the very restraints it designed, as where the Mayor participated in large public protests.  

The federal court noted that it has declined to address the question of the applicability of an enhanced standard for mandatory injunctive relief, as the relief requested and granted requires restraint from enforcement which does not compel the government to act.  The court observed that in any case the higher standard, if applied, could be met.

The Court also noted that it has declined to address First Amendment claims at this time because it has proceeded with RFRA analysis.

The Court rejected the District of Columbia’s untimely filings and rejected its argument that the church was itself untimely in seeking judicial relief, as the Court felt that the church ought not be penalized for first attempting negotiation before commencing litigation.

For the removal of doubt, the order is appealable.

The case has attracted a chorus of elected officials as amici, as well as a religious liberty advocacy group, which has compiled a summary of state pandemic restrictions on religious gatherings.

CHBC v, Bowser, Mayor, No. 20-02710_2020 10 09 Memorandum

CHBC v. Bowser, Mayor, No. 20-02710_2020 10 09 Order

CHBC v. Bowser, Mayor, No. 20-07210_34 Senators’ Amicus Brief

CHBC v. Bowser, Mayor, No. 20-02710_ Becket Fund for Religious Liberty Amicus Brief

Still Standing, Yet at a Standstill. Federal Court Lauds Attorney’s Efforts to Call to Account the Kentucky State Supreme Court and Bar Administrative Committee But Decides Federal Relief is Precluded as Either Speculative or Barred by Sovereign Immunity

Doe v. Supreme Court of Kentucky, et al., No. 3:19-cv-236 (JRW).  Memorandum and Order granting dismissal entered August 28, 2020.

Doe sought admission to practice law in Kentucky after having done so successfully in Florida for nine years.  During that time, Doe was diagnosed with a mental health condition.  She agreed to practice with a monitor and complied with clinical recommendations.

Kentucky made multiple inquiries about Doe’s condition, demanding all medical records, convening hearings, requiring over-reaching contractual obligations but finally, after nearly two years, relenting in its insistence on conflating a mental condition with a deficit of character. Doe was admitted to practice.

Doe promptly commenced suit against the state court and bar authorities for violations of the Americans with Disabilities Act, defamation, and for other wrongs she asserted were inflicted upon her in the course of her pursuit of a license to practice law.

The federal court hearing her case praised her diligence in pursuing her licensure as doing so conferred a benefit not just to her but to the profession and society in general.  Where it is known that attorneys suffer a disproportionately higher incidence of stress, depression, addiction and suicide than others in society, hounding and threats of disqualification by the state and the bar serve only to invite harm, the court observed, as those fearing loss or denial of licensure or the oppression of the state will not seek help, and where help is not sought, some will lose not only their cases but their lives

Nonetheless, the court determined that it could not grant Doe relief.  Prospective relief could not be awarded as it would be speculative.  Other relief requested by Doe, even though she had standing, could not be awarded in federal court because immunity principles forbade doing so.  

Doe v. Supreme Court of Ky. (W.D. Ky. 2020)

Sectarian Versus Secular Civil Rights: Supreme Court Permits Church Employers Latitude in Defining Employee Roles and Rights

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).


In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.


Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).   These teachers do not, however, have titles associated with professed religious persons or functions.

Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference.  Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination.  The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment.  Both responding employers stated that their decisions were bawsed on employee performance.

The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions.  An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption.  Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.

The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption.  Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.

A rigid formula for characterizing employment as religious is inapt.  “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.”  (Slip Op. at 26-27.)

Justices Thomas and Gorsuch concur.  Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.

Justices Sotomayor and Ginsburg dissent.  The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions.  Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate.  The ministerial exception is judge made law.  Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse.  It is to be preferred to make constitutional determinations on a case by case, holistic, basis.  The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.

Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus.  Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority.  Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.

Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception.  Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.

Our Lady of Guadalupe v. Morrissey-Berru, No. 19-267 July 8, 2020

 

Federal District Court in New York Enjoins Pandemic Precautions Restraining Religious Gatherings

Soos, et al. v. Cuomo, et al., No. 1:20-cv-651 (N.D.N.Y.) (GLS/DJS).  (Order granting injunctive relief entered June 26, 2020).


Since the inception of public health concerns about potential harms should coronavirus (COVID-19) contamination be left unchecked, New York state and city officials have issued not less than seventeen orders dictating who may congregate where and for what purposes.  Religious services fell among the most rigidly curtailed events.

Notwithstanding harms predicted to ensue from close unprotected contact with others, in June mass protests erupted across the United States.

Thousands gathered in New York without official objection.  The governor counseled citizens to be “smart” by practicing social distancing.  It has been reported that, apparently without further elaboration, the Mayor of New York opined that protesting racism presented a “different  question” than did religious events, certain of which he had previously vociferously condemned.

On motion brought by religious leaders, the United States District Court for the Northern District of New York declined to find the public health orders to be “neutral laws of general applicability” presumed to be constitutionally sound even if such laws incidentally burden religion.

The state and local course of conduct created de facto exemptions specifically inhibiting the free exercise of religion, the court found.  The court could not identify a compelling interest which would justify any distinction that would permit public gatherings for some purposes but not for religious purposes. Where irreparable harm could be presumed to flow from the prevention of religious free exercise rights, the court enjoined enforcement of any indoor restrictions greater than those imposed on non-essential entities and any outdoor restrictions.  In both indoor and outdoor settings, social distancing precautions are to be employed.

Soos v. Cuomo No. 20-cv-00651 (N.D.N.Y.) Order June 26 2020

 

 

Time and Tide and Textualism: Supreme Court Holds “Sex” in Civil Rights Act Includes Orientation and Transexual Status

GERALD LYNN BOSTOCK v. CLAYTON COUNTY, GEORGIA, No. 17-1618; ALTITUDE EXPRESS, INC., ET AL. v. MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, No 17-1623; R.G. & G.R. HARRIS FUNERAL HOMES, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL., No. 18-107 (June 15, 2020)


Today the United States Supreme Court held that interpretation of the statutory language of Title VII of the Civil Rights Act of 1964, as amended, compels the conclusion that sexual orientation and transexual status, inextricably bound to sex, are within the meaning of the statute prohibiting discrimination because of sex.

The decision will undoubtedly be hailed as a great victory for rights activists while the opinion of the majority and the opinions of the dissenting justices will undoubtedly provide grist for the jurisprudential mill for years to come.

Justice Gorsuch, writing for the majority, observed that what Congress foresaw when it enacted the Civil Rights Act of 1964 does not mean that the legislation must be myopically interpreted according to that time:

“…the limits of the drafters’ imaginations supply no reason to ignore the law’s demands.  When the express terms of a statute give us our answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.”

Slip. Op. at 2.

Each of the plaintiffs was a long term employee and each was terminated from employment because of sexual orientation or transgender status.  Employers argued that neither orientation nor transgender status are part of Title VII and that, therefore, the terminations were not discriminatory. Three federal circuit courts of appeal interpreted Title VII without consensus.

Statutory construction looks to the “ordinary public meaning” of words at the time of a law’s enactment.  This inhibits judicial meddling in legislative affairs and promotes soundness in public perception of rights and obligations.

Assuming that in 1964 “sex” meant biological sex, the majority wrote, then “because of sex” meant “by reason of” or “on account of” sex.  This establishes but-for causation and obviates the need for parsing concomitant or serial causes.  Once an employment decision is made that would not be made if an individual’s sex were different, liability attaches and it is immaterial if other causes are present.  It does an employer no good to point to other reasons once sex is a reason for a decision.  Indeed, over time the Congress has amended the Civil Rights Act to include liability where sex is a “motivating factor” in a decision.

The Court rejected the employers’ argument that discrimination could only be in reference to others similarly situated, as the statute repeatedly references individuals.  It is of no moment if an employer generally treats women well if in an individual case a decision was based unlawfully on sex.

If sex cannot be relevant to employment decisions, the Court reasoned, then neither can sexual orientation or status, as both are inextricable from sex.

Since enactment of the Civil Rights Act of 1964, discrimination “because of sex” has come to include discrimination based on habitual perceptions or stereotypes or actuarial assumptions.

It is no answer to say that Congress could not or did not foresee sexual orientation or status as a concern at the time of enactment when the statutory language addresses sex and orientation and status are inseparably related to sex.

It makes no difference, the majority found, that orientation or status was not included in the statutory language where those traits are inextricably interwoven in sex.

Concluding that orientation or status is not within Title VII based on Congress’ failure to amend Title VII where it has directly considered sexual orientation in other statutes would be speculation.

Asserting that meanings have changed since 1964 is unavailing where the plain meaning of the statute supplies the answer needed. The breadth of Title VII as it has been interpreted over time cannot be denied.  As such, the Court’s decision in this case is not unusual in light of the many unanticipated decisions flowing from the Civil Rights Act in the more than half century since its passage.

Three Dissenting Justices, Two Dissenting Opinions.   Justice Alito, joined by Justice Thomas, chastised the majority for having confused textualism with legislation, performing the former poorly and usurping Congress’ function in the latter.

The majority has engaged in a “false flag” textualist operation, as neither sexual orientation nor transgender status appear in the text and the form of ‘textualism’ which would permit the legislative updates provided by the majority was denounced by textualism’s primary proponent, Justice Antonin Scalia.

Justice Alito notes that an exhaustive review of dictionaries failed to disclose any incorporation of orientation or status within the meaning of “sex.” Moreover, orientation and status are in fact separable from “sex.”  Plaintiffs’ counsel conceded at oral argument that if an employer were to prohibit hiring on the basis of gay or transgender status but hiring would be without knowledge of biological sex, this practice would not be discrimination “because of sex.”

This very concession makes the majority’s reasoning all the more lacking, Justice Alito found. Moreover, if an employer is unaware of a potential employee’s sexual orientation or status, that employer cannot be found liable for intentional discrimination on that basis.

Justice Alito sees a rich irony in the majority’s effective statutory amendment under the guise of ‘textualism’.  Although the majority purports to interpret the statutory language as it is written, the majority overlooks more than a half century’s interpretations of that text, all the while declaring its ‘judicial humility’.

The ramifications of the Court’s decision cannot be overlooked.  The decision may impact facilities access, sports participation, housing, religious employment, and health insurance coverage for gender reassignment.  Speech freedoms may be implicated by forms of address and language.

Writing separately in dissent, Justice Kavanaugh opined that Congress and not the Supreme Court must address the question before the Court.  While stressing his position that sexual orientation and transgender stratus must fall within the law, the decision maker on this policy belongs to the legislative branch.

Justice Kavanaugh questioned the utility of the literalist textualism that he saw in the majority’s view, as the law requires that interpretation look to the ordinary, not the literal, meanings of words and phrases.  A rigid literal approach is not a good textual approach, according to textualism’s proponents.  And literal interpretations, disregarding as they may the everyday meaning of words, fail to perform the essential work of the law, which is to put the citizenry on notice of what the law is.

Equally problematic is the majority’s decision to rewrite history in creating its new interpretation.  To disregard history serves no goal well, no matter how laudable in principle that goal may be.  Historically sexual orientation discrimination has been seen as a form of discrimination separate from sex discrimination.

While it is understandable that those affected and those who support them would find joy in the majority’s decision, Justice Kavanaugh fears that the majority’s methodology will be questioned by many, and that, as a result, many will simply not buy it. A lack of confidence in the opinion is of little aid to those supporting the conclusion and undermines confidence in the Court as an institution.

17-1618 Bostock v. Clayton County (06_15_2020)

 

 

 

 

 

Some Kind of Hearing, Updated: UConn Student’s Suspension Permanently Vacated, Parameters of New Investigation and Hearing Envisioned, and Student Deemed to Have Prevailed.

John Doe v. University of Connecticut, et al., No. 3:20-cv-00092 (D. Conn.)


A student accused of conduct violations and the University of Connecticut and its officials have reached agreement to dissolve permanently the student’s suspension and to refashion rules and procedures for a new investigation and hearing on the allegations.  The new proceedings, to be completed not later than this month, are intended to provide some due process safeguards seen to have been lacking in initial proceedings. 

The U.S. District Court has entered judgment in accordance with the Consent Order submitted by the parties, with the court to retain jurisdiction to hear any matters relating to that order. 

The university defendants concede that John Doe is the prevailing party in the case and as such is permitted to recoup attorneys’ fees.  The process of determining the amount of the fee award is underway.  

Just Lawful Observation:  The case exemplifies the hazards of college and university administration of investigations and discipline having life long consequences yet operating without the constitutional guarantees promised in federal and state courts. 

The consequences to an accused student deprived of due process are life altering.  To this may be added the financial pressures on universities to be compliant with federal gender parity laws, violation of which will result in loss of funding.  Some believe this pressure has rendered schools incapable of operating without bias.  Moreover, social pressure to vindicate individuals who complain of sexual misconduct is everywhere felt, no less so in colleges and universities.

It occurs to Just Lawful that if ever there were cases that cry out for restorative or reparative justice, it is these cases in which students’ lives implode when activity viewed as consensual by one is viewed as assault by another.   Where remedies may be devised through mediation or learned interventions for both parties, this may be worthy of exploration.  

The costs of these proceedings to students, whether accused or accuser, are not academic in any sense:  at this time John Does’ attorneys’ fees request approaches one hundred thousand dollars.  Few students or their families could shoulder such costs without hardship.

2020 3 20-cv-00092 Consent Order

2020 3 20-cv-00092 Judgment