Early women’s rights advocates relied on formal citizenship status as a basis for demanding the substantive rights that full citizens enjoy—a broad spectrum of political, personal, and civil rights from suffrage to child custody to property ownership.  Out of the Seneca Falls convention in 1848 came the Declaration of Sentiments, a wish list that would serve as the blueprint for a century of women’s rights advocacy.  The civil and political rights emphasized by those early advocates were essential components of equal citizenship, a substantive concept popularized in the 1950s by British social theorist T.H. Marshall.  But Marshall also identified an important third dimension—social citizenship—which, in the United States, involves access to paid work and economic security.

Pregnancy, with physical effects that often, if only temporarily, impede a woman’s working capacity, is increasingly an obstacle to women’s equal social citizenship.  Conflicts between pregnancy and work escalated in number and degree as women expanded their labor force participation in many respects, including working more and longer while pregnant and holding hazardous and physically strenuous (but often well-paying) jobs traditionally reserved for men.

The Pregnancy Discrimination Act of 1978 (PDA) was part of a broad social movement designed to guarantee equal employment opportunities for women, but was specifically designed to dismantle a system in which states and employers freely, though inconsistently, excluded pregnant women from the workplace or restricted the conditions under which they could work based on false assumptions about their capacity.   Unquestionably, the PDA successfully opened workplace doors for pregnant women, invalidating these laws and policies and giving women a weapon against employment decisions motivated by harmful pregnancy bias.  But women’s equal participation in the workforce requires more than just open doors.

The plight of pregnant workers today rests not primarily in false assumptions about their incapacity but in the failure of current law to account for the physical, medical, and social realities of pregnancy. Pregnancy discrimination law provides absolute protection for women only if they retain full work capacity during the period of pregnancy and childbirth.  In cases of partial incapacity, it provides only a comparative right to accommodations that can be limited in nature and difficult to enforce.

My Article argues that equal citizenship requires not only legal protection from unjustified exclusion from the workforce, but also protection for a pregnant woman’s right to work despite the potential temporary physical limitations of pregnancy.  This protection, in turn, means that employers must be required to provide reasonable workplace accommodations to counter the physical effects of pregnancy.

I.
The Realities Faced by Pregnant Working Women

Perhaps the most important fact about pregnant working women today is the dramatic increase in their numbers.  A general influx of women into the workforce beginning in the 1950s (so substantial that they are now poised to outnumber male workers) set the stage for the eventual increase in labor force participation by pregnant women and mothers.  This, combined with a change in attitudes about the proper role of women, fostered greater workforce participation by pregnant women and mothers.  Today, a majority of pregnant women work outside the home, and the vast majority of working women will become pregnant at some point during their working lives.  And women who do work while pregnant stay longer and return sooner than women from earlier eras.

Despite their numbers, however, pregnant women continue to face bias in the workplace. Pregnancy discrimination claims have surged in the past decade, and major companies have found themselves on the receiving end of high-profile lawsuits.  Recent cases show the persistence of stereotyped decision making about pregnant workers, a finding supported by social science evidence.  However, pregnant women may be harmed more by the law’s commitment to pregnancy-blindness than by these residual instances of bias.

There is no inherent conflict between pregnancy and paid work. The workplace has long been plagued by false assumptions about the pregnant woman’s ability to work, but with little attention to relevant scientific data or the advice of individual doctors.  The first science-based guidelines on pregnancy and work, formulated in the 1970s and 1980s, concluded that a woman with an uncomplicated pregnancy can normally work until she gives birth and safely resume work several weeks later.  Since those initial guidelines were published, researchers have undertaken to study further the concrete effects of work on maternal and fetal health.  Despite advances in scientific research, there is still much more to be learned about the effects of work on pregnancy.  We know enough, however, to be concerned about a legal framework that fails to account for the physical effects of pregnancy.

Conflicts between pregnancy and work run both ways—pregnancy can interfere with job performance and job performance can interfere with healthy pregnancy.  These conflicts stem from the inevitable physical changes that accompany a woman’s pregnancy.  Many pregnant women will have difficulty, at various points during pregnancy, performing tasks like heavy lifting, prolonged standing, or rapid movement or complying with inflexible policies about start time, bathroom breaks, or eating on the job.  At the same time, women may encounter hazardous conditions at work even when their own capacity is not impaired.  Pregnant women face three types of potential danger at work: hazardous environmental conditions (contagions, chemicals, etc.), contraindicated physical movements (heavy lifting, for example), and adverse working conditions (night shift work, for example).

II.
Women’s Equal Citizenship

Pregnancy discrimination law, like most contemporary women’s rights issues, has developed under the framework of equality.  The equality model has been enormously helpful in breaking down barriers to the workplace, among other institutions.  But “equality” is hard to define and thus hard to measure, and disagreements over its proper definition have led to significant shortcomings in legal protection for pregnant workers.

This Article thus turns to full or equal “citizenship” as a standard by which to evaluate pregnancy discrimination law.  “Citizenship,” in the words of T.H. Marshall, “is a status bestowed on those who are full members of a community.  All who possess the status are equal with respect to the rights and duties with which the status is endowed.”¹ A “second-class citizen” is someone who is deprived of some essential component of citizenship, despite having an equal formal status.  “Citizenship,” though a contested concept, provides a substantive framework to measure women’s progress towards equality generally, as well as to critique current law’s treatment of pregnant women at work.

The citizenship framework has been criticized for its exclusionary effects, as well as for its focus on rights without an attendant focus on obligations.  This Article acknowledges those criticisms, but defends “equal citizenship” as a useful tool with a long and venerable history in the women’s rights movement.  The exclusionary effects can be addressed both through form—by replacing “citizenship” with terms like “standing” or “belonging,” as many scholars have done—and substance—by committing to the equal “citizenship” of all residents regardless of formal citizenship status.

Despite concerns about its exclusionary effects, the concept of equal citizenship continues to resonate with voters, advocates, legislatures, and judges.  Justice Ruth Bader Ginsburg invoked it in her opinion in United States v. Virginia,² which held that VMI’s all-male admissions policy was unconstitutional: “neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”³ It is this conception of equal citizenship that fuels this Article’s evaluation of current pregnancy discrimination law.

Work is an important component of equal citizenship, and the central feature of so-called “social citizenship.”  Work facilitates political participation, but also has tangible benefits for the individual, including, importantly, the potential for economic security. Women’s quest for social citizenship began in earnest in the 1960s, when advocates targeted a wide range of exclusionary policies and practices that hampered women’s employment opportunities.  Key legislative successes like the Equal Pay Act, Title VII, and Title IX, and significant litigation victories establishing a broad scope for these laws, were dovetailed by the Supreme Court’s embrace of a constitutional right of sex equality.  These developments were fueled by a stark change in social attitudes about women’s proper place and gave rise to a dramatic opening of workplace doors to women.

Despite the intense (and often successful) efforts feminists have deployed to increase women’s access to the workplace, it would be misleading to suggest that there is no disagreement among them about the importance of paid work or its centrality to social citizenship.  While many academics and popular press authors have urged women to embrace paid work as a pathway to independence, others have cautioned that the tendency to valorize work narrowly reflects the perspective of white or upper/middle class women and that the emphasis on work neglects the disproportionate amount of family and care work performed by women.

Regardless of whether one thinks we should push for equal valuation of unpaid work, equal access to meaningful paid work remains an essential, minimum component of equal citizenship.  Yet pregnancy presents a challenge: it often renders women temporarily less capable of performing their jobs, but not necessarily interested in converting their efforts to unpaid labor during or after pregnancy, even if society equally valued that work.

III.
Pregnancy Discrimination Law: From Exclusion to Access

Legal protection against pregnancy discrimination at work was a 1970s invention that brought about a stark turnabout in the treatment of pregnant working women.  An era of exclusion gave way to an era of access, as a legal regime that once permitted employers to bar pregnant women from the workplace with impunity was replaced with one that mandated pregnancy-blindness.

Traditionally women worked at the whim of employers, many of whom excluded pregnant or fertile women.  In 1908, the Supreme Court gave its imprimatur to exclusionary policies designed to protect women’s reproductive function in Muller v. Oregon,⁴ an opinion that led to decades of state protectionist legislation and exclusionary employer policies.  Even after Title VII was adopted, and heightened scrutiny for sex-based classifications was established, the Supreme Court twice gave its approval to laws and policies that discriminated against pregnant women.⁵

Federal pregnancy discrimination law comes from three sources.  First, despite ruling against an equality-based right for pregnant workers, the Supreme Court granted a limited due process right against presumptions of incapacity due to pregnancy.  Second, Congress adopted the PDA in 1978, which, in a first clause, adds pregnancy to the definition of prohibited sex discrimination and, in a second clause, requires that employers treat employees with pregnancy-based disability the same as those “not so affected, but similar in their ability or inability to work.”  Finally, Congress adopted the Family and Medical Leave Act of 1993 (FMLA), which grants a gender-neutral right to limited unpaid leave for illness or family care, which can be used, as needed, for disabilities associated with pregnancy and childbirth.

Feminists split over the proper interpretation of the second clause of the PDA.  The “equal treatment” feminists urged formal equality—pregnant women should receive only what other temporarily disabled workers receive—in order to promote better conditions for all workers and to avoid promoting harmful gender stereotypes.   An opposing coalition, in contrast, urged a substantive equality model, advocating for accommodation of pregnancy and childbirth when necessary to ensure equal outcomes for men and women in workplaces, whether other forms of temporary disability were accommodated or not.  The latter view won out, as the Supreme Court interpreted the second clause, in California Federal Savings & Loan Ass’n v. Guerra,⁶ as a floor, rather than a ceiling, on the benefits that could be made available to pregnant workers.

This ruling, in effect, leaves pregnant workers at the whim of their employers in many cases.  If they provide leave, accommodations, or benefits to temporarily disabled workers generally, they must also provide them to pregnant workers.  Employers can favor the needs of pregnant workers over those of other temporarily disabled workers.  But, if employers are stingy across the board, pregnant workers have little to support a demand for better treatment regardless of necessity.  A “no leave” policy, for example, could be upheld, subject only to the minimal protections of disparate impact law, even if it effectively means that all pregnant employees lose their jobs when it comes time to give birth.

Through these various legal components, pregnant workers have a right to an individualized assessment of their capacity (as opposed to the traditional stereotyped assessments that presumed them incapable by the mere fact of pregnancy).  They also have a right to work if fully capable and their “capacity” cannot be defined by potential risk to fetal health.  This is, in effect, a right of pregnancy blindness—employers must look past the pregnancy and treat them solely based on what they can or cannot do.  When fully incapacitated by pregnancy or childbirth, employees may have the right to leave—a comparative right to leave under the PDA and an absolute right, if eligible, under the FMLA.

IV.
Workplace Accommodations and the Failure of Social Citizenship

Together, these constitutional and statutory developments spelled the end of a number of traditional policies, practices, and stereotypes that had kept pregnant women from entering the workforce or continuing in their jobs during or after pregnancy.  The pregnancy discrimination framework, however, is as notable for its gaps as its coverage.  When only partially incapacitated by pregnancy, a worker’s rights are much more tenuous, and the legal regime often produces unsatisfactory results.  The Americans with Disabilities Act (ADA) generally does not apply to disability arising from normal pregnancy or childbirth.  Likewise, the Due Process Clause, while it has been read to prohibit pregnancy-based stereotyping, does not support any right to workplace accommodations for pregnant workers.  The PDA does not provide pregnant employees with the absolute right to reasonable or necessary accommodations.  An employer cannot deny accommodations because of pregnancy, but nor must it make even minor accommodations, even if the consequence is that the pregnant woman must leave her job.

The pregnant woman’s right to workplace accommodations is comparative, based on the treatment of other temporarily disabled workers.  This right, however, has proven quite limited in practice.  The search for a comparator can be elusive.  Recent cases challenging “light-duty” policies reveal another limit on the comparative right of accommodation.  Many employers reserve light-duty assignments (for example, desk duty for a police officer) for employees injured on the job.  All but one court has upheld such policies, even though this ensures that pregnant workers are always excluded.

In theory, disparate impact law should compensate for some of the shortcomings of the PDA’s comparative right of accommodation by invalidating some of the harsh employment policies that make it difficult for women to work through pregnancy.  But, again, in practice, it has not proven helpful.  Although courts acknowledge the existence of disparate impact liability, many refuse to apply it in its true form to pregnancy cases.  They reject its use to the extent it might result in a pregnant worker being exempted from a general workplace policy or gaining access to an accommodation not otherwise available.  Even when courts are willing to consider disparate impact claims in true form, plaintiffs in pregnancy cases almost always lose because they lack sufficient statistical evidence or are unable to identify an employment “practice” that produced the impact.

The limits on the comparative right of accommodation and disparate impact protection mean, in effect, that pregnant women in many cases do not have the right to continue working if pregnancy has even minimally impaired their capacity.  For those without available leave, the failure to provide reasonable accommodations is tantamount to termination.  Even for those with leave, pregnancy can bring dire economic consequences (especially if the leave is unpaid) and lost opportunities for advancement.  The lack of accommodation means that women will continue to lose ground in the occupations in which they need to gain it most—those traditionally dominated by men.  Studies show that women are less likely to continue working through pregnancy when they hold jobs that require physical exertion.  Moreover, because pregnancy typically comes early in women’s careers, the repercussions of lost training, wages, seniority, or opportunities for advancement can be felt for decades. Pregnancy simply exacerbates the tendency of predesigned and inflexible workplaces and jobs to exclude women as they seek to integrate across the occupational spectrum.

These scenarios bring us back to the initial question posed—whether the pregnancy discrimination framework precludes women from attaining equal social citizenship.  This Article argues that accommodation is the link between pregnant working women and equal social citizenship.  The failure of current law to acknowledge a pregnant woman’s right to work despite temporary, partial impairments or risks systematically undermines the ability of women to attain workplace equality.  It shortcuts the careers of individual women, exacerbates the glass ceiling many women already face, and, perhaps even worse, reinforces a long history of occupational segregation.  This, in turn, is a failure of equal social citizenship because it renders women less able than men to capitalize on their innate talents and capacities because of a unique biological function.  It breathes continued life into a pattern, noted by Justice Ginsburg in her recent dissent in AT&T v. Hulteen, that “[c]ertain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman’s place among paid workers and active citizens.” ⁷

Accommodation mandates come with risks—resentment, cost, and a deterrent to hiring women, to name just a few.   However, we can learn from mandates in other contexts.  The ADA also provides a natural model for providing workplace accommodations, although judicial interpretations have undermined its intended effects.   Some states have taken a more targeted approach, imposing narrow, but important, pregnancy accommodation requirements on employers.  These mandates demonstrate that we can craft an accommodation right that serves the needs of pregnant workers while minimizing adverse consequences.

Conclusion

The story of pregnant women and work in the United States is an unfinished one.  The current pregnancy discrimination framework has been tremendously important in opening up the American workplace to women, most of whom will both work and become pregnant at some point.  But the same emphasis on individual capacity that was crucial to dismantling the long-held stereotypes about the limitations and incapacities of pregnant women now serves as a stumbling block to future progress towards workplace equality.  The lack of a basic right to reasonable accommodation of pregnancy-related disability overlooks the real physical effects of pregnancy and childbirth on women and their employment opportunities.  Doors have been opened, but not enough has been done to ensure pregnant women can make full use of their innate talents and capacities once inside.  A genuine commitment to equal social citizenship can be carried out only by a legal framework that accounts for both the capacity and the potential incapacity of pregnant women.

Acknowledgments:

Copyright © 2010 Georgetown University Law Center.

Joanna L. Grossman is Professor and John DeWitt Gregory Research Scholar at Hofstra University School of Law.

This posting—and the Note from which it is derived—focuses on litigation by the Christian Legal Society (CLS), in which the CLS adopts rights rhetoric. In the cases I examine, CLS seeks exemptions for its student groups from the nondiscrimination policies of various public universities. The litigation arises from the fact that CLS chapters prohibit any student who engages in homosexual conduct or believes that homosexual conduct is not sinful from being an officer or voting member. As a result of this policy, CLS chapters have come into conflict with school administrations that forbid their student groups from discriminating on the basis of sexual orientation and which argue that CLS violates those nondiscrimination policies.

CLS argues that if its membership selection process violates universities’ nondiscrimination policies, it has a constitutional right to an exemption from such policies to the extent that they require nondiscrimination based on sexual orientation. Of the four cases considered in this posting, two of them—the suits against Arizona State University and The Ohio State University—settled before a court decision was rendered. CLS litigated a third case in the Seventh Circuit, successfully obtaining a preliminary injunction against Southern Illinois University School of Law (SIU Law). The parties subsequently settled, with SIU Law acquiescing to CLS’s membership and officer requirements. The fourth case, in which CLS sued Hastings College of the Law, went to the Ninth Circuit, where CLS ultimately was unsuccessful. The United States Supreme Court granted cert in this fourth case, Christian Legal Society v. Martinez, on December 7, 2009.

Because it adopts rights rhetoric in its litigation strategy, rhetoric commonly adopted by the gay rights movement, CLS creates a clash between its religious rights and homosexual students’ rights—a rights clash that inevitably leads to a zero-sum game. The legal system is hard-pressed to resolve the religion-homosexuality rights clash given this zero-sum game.

Despite these pitfalls, it remains important for rights clashes to be resolved institutionally, but this requires a change in our perspective on how legal institutions can properly handle such rights clashes. Instead of expecting an ideal solution to a rights clash in each act of a legal institution—such as a judicial decision or a legislative enactment—we should view each act as an imperfect moment in a political-judicial dialogue winding its way toward a principled resolution. I evaluate this perspective by examining two case studies of institutional dialogue in attempts to resolve the religion-homosexuality rights clash.  Although this perspective does not address all of the complications that rights clashes introduce, it does help temper expectations of what can be achieved from our current legal system while still maintaining hope for a proper result in the long term.

 
I.
The Use of Rights Rhetoric in the Christian Legal Society’s Litigation Strategy

Rights arguments, which involve universalizing the interests of an identity group, seem binding and dispositive in American legal disputes because arguments that “appeal to shared and uncontested understandings of the Constitution” and that are framed in “the language of a common tradition” are most effective in constitutional cases.¹

In arguing for exemptions from universities’ nondiscrimination policies, CLS adopts the rhetoric of rights, which encompasses related arguments based in identity and discrimination. It characterizes the lawsuits as civil rights cases and has argued that the belief that homosexuality is a sin is so integral to CLS’s identity that the ability to exclude active homosexuals and those who believe homosexuality is not a sin is key to its very existence. CLS argues that the universities discriminate against it as an identity group.

Of course, rights rhetoric commonly has formed the basis of the litigation strategy of the gay rights movement, CLS’s indirect adversary in this litigation. Indeed, in their briefs defending the application of the universities’ nondiscrimination policies to CLS, groups like Hastings Outlaw and the American Civil Liberties Union invoke similar discrimination and identity rhetoric. As a result, the language of rights is on both sides of this litigation.

 
II.
Rights Clash and the Zero-Sum Game

When rights clash—that is, when both sides of a dispute adopt rights rhetoric—reasonable people may disagree over how that clash should be resolved. There is significant disagreement among scholars regarding the proper outcome to the religion-homosexuality rights clash. The inevitable win-loss experienced by the two sides of the clash can be understood as a zero-sum game: the beliefs of the two sides are at such odds that their interests in the outcome are irreconcilable. The question comes down to whether gay rights should receive the full protection of nondiscrimination policies or whether religion should be singled out and granted exemptions—the two extremes of the zero-sum game.

Some scholars argue that religion should not receive special treatment; rather, gay rights, like other civil rights, outweigh religious objections. One iteration of this argument is that a “baseline of nondiscrimination” is necessary to “[e]nsur[e] that LGBT people can live honestly and safely in all aspects of their social lives” and “that members of the public who have a morally neutral characteristic are able to live without fear or vulnerability of discrimination based on that characteristic.”² Beyond this normative argument, another contention is that the government should not treat gay rights differently from civil rights based on race. Civil rights based on race generally prevail over religious rights, while the relationship between religious rights and rights based on sexual orientation (and gender) is less settled.

Other scholars argue that the weighing of the interests comes out on the other side: given the existence of a rights clash, there is good reason to favor religion and grant it exemptions from laws of general applicability. Professor Andrew Koppelman has argued that if the law must pick sides, religion is a fair and proper side to choose because it is a “distinctive human good.”³ Another argument is that giving religion special constitutional treatment is in keeping with the goals of the First Amendment: the Religion Clauses are intended to minimize government’s disturbance of private observance of religion, and religious exemptions from generally applicable laws are acceptable special treatment of religion because they help to advance this constitutional goal.⁴

 
III.
Implications: The (In)Ability of the Legal System To Resolve the CLS Rights Clash In a Principled Way

Given that reasonable people may disagree over how a rights clash should be resolved, does that mean that when both parties to a dispute invoke rights language, the outcome becomes indeterminate—contrary to the commonly-held belief that rights rhetoric is determinate? Can rights clashes be resolved in a principled way in the courts or legislatures? Must we look to extra-institutional approaches for a principled result? Here, I evaluate these options.

 
A.     The Courts: Unpredictable Umpires or Redeemable Referees?

Critical Legal Studies scholars have argued that rights rhetoric leads to indeterminacy in the courts. By “indeterminacy” these scholars mean lacking a single, objective, predictable answer to a legal problem. In other words, rights arguments, like policy and normative arguments, are susceptible to strategy and value judgments.

They contend that indeterminacy is especially salient when there is a rights clash because it inevitably leads to balancing of the conflicting interests. And once a court begins balancing competing claims of rights, “it is implausible that it is the rights themselves, rather than the ‘subjective’ or ‘political’ commitments of the judges, that are deciding the outcome.”⁵

Thus to the extent that we value courts’ ability to resolve the religion-homosexuality rights clash in a principled and unbiased way—a desire that is uniquely felt when the two parties going head-to-head are both minority groups—the question remains whether there is a better option for resolving the CLS disputes.

 
B.     The Legislatures: Enlightened Statesmen?

Some scholars contend that legislatures are the better branch in which to resolve problems like the religion-homosexuality rights clash. Central to this argument is the notion that “politics is the arena of compromise,” a characteristic that would theoretically solve the problem of having to pick a winner in the zero-sum game.⁶

The problem that remains is that the zero-sum game is inevitable where the government is involved. Changing political views on the subject would lead to the greatest indeterminacy of all. The Founders, of course, were particularly concerned by the strength of representative legislatures and their potential for tyrannical majorities. Thus, there is reason to doubt whether legislatures alone can resolve rights clashes in a principled way.

 
C.     Extra-Institutional Approaches

1.   Private Dispute Resolution: Room for Compromise or Compromised Results?

Recognizing some of the problems of judicial and legislative resolutions of rights clashes, some scholars have suggested that the best way to avoid the zero-sum game is to resolve disputes privately. Because the experience may be less polarizing, the parties have a greater chance of encouraging normative growth and coming to an understanding of their competing interests.

Private negotiations and settlements may, theoretically, avoid the zero-sum game. However, this solution is not a cure-all because it leaves systemic problems with legal institutions in place. Settlements are inextricably linked to litigation because threats of litigation must be sincere in order to motivate settlement negotiations; thus, there is a potential that any given rights clash will go to court. But because settlements do not make law that is binding on courts or parties other than those parties privy to them, they do not help advance principled results in legal institutions for future litigation (or for legislative decisionmaking). Thus settlements are not as effective as legislation and judicial decisions in promoting progress in constitutional understanding—as evidenced by the coexistence of a circuit split with two settled cases in the CLS litigation.

A related problem with negotiation was previously mentioned in the context of legislation and bears repeating: even when the government does not “get involved” in a rights clash, it is taking a side. Governmental inaction simply creates a default position.

2.   Ballot Initiatives: Trust the Result to the Will of the People?

Ballot initiatives are particularly problematic for resolving rights clashes. Perhaps of most concern, ballot initiatives lack the greatest advantage of private dispute resolution: compromise. And even as they depart in this respect from the legislative process, which does offer some level of compromise, ballot initiatives share a flaw with representative lawmaking: tyranny of the majority. When both parties in rights clashes claim to be minority groups, this drawback causes one to wonder if there is not a better solution.

 
IV.
A Different Perspective: Case Studies in Political-Judicial Dialogue

The flawed nature of each judicial decision and each piece of legislation that attempts to resolve this rights clash necessitates a new perspective on what one can expect from such decisions and legislative enactments. One can view each flawed case and piece of legislation as a part of an ongoing political-judicial dialogue that is working toward a principled and acceptable resolution. Through institutional interaction, the law evolves to take into account the rights of religious groups as well as homosexual citizens.

In Canada and Vermont, the debates over gay marriage were framed by religion-homosexuality rights clashes. Religious scholars and groups opposed the legalization of same-sex marriage, fearing that it impinged on their religious rights. The legal systems in both jurisdictions have engaged in institutional dialogues to resolve this clash.

In Canada, the institutional dialogue was set off by a Supreme Court case that invalidated a law limiting spousal support rights to heterosexual relationships. A firestorm of legislative response followed, in which federal and provincial legislatures revised laws to extend protections enjoyed by opposite-sex couples to same-sex couples. Several years later, two Canadian appeals courts held that same-sex couples were entitled to marry. The Canadian government decided not to appeal either case, but rather to draft legislation that would recognize their holdings—a prime example of political-judicial dialogue. In an advisory opinion requested by Parliament, the Supreme Court of Canada held that this legalization of same-sex marriage was permissible and that under the Canadian Charter of Rights and Freedoms religious groups would be protected from performing marriages that violated their religious beliefs.

Vermont, like Canada, has adopted a same-sex marriage law that explicitly recognizes the rights of religious groups, and the road to its enactment was paved by institutional dialogue. In Baker v. Vermont, the Supreme Court of Vermont held that same-sex couples had a constitutional right to “the same benefits and protections afforded by Vermont law to married opposite-sex couples.”⁷ The Baker court set up a political-judicial dialogue by declining to determine how that right should be recognized. Vermont’s legislature responded with “civil union” legislation. This legislation was met with varying responses at the polls. In 2009, the legislature enacted, over the governor’s veto, legislation that recognizes gay couples’ right to marry and protects religious organizations from being “required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request . . . is related to the solemnization of a marriage or celebration of a marriage.”⁸

Whether the Canadian and Vermont dialogues have achieved an ideal resolution of the religion-homosexuality rights clash, however, is unclear. The debates continue, with some arguing that the religious exemptions are insufficient. Though the dialogues may be ongoing, they have provided the compromise of private dispute resolution while advancing—rather than ignoring—legislatures’ and courts’ resolutions of the religion-homosexuality rights clash.

 
Conclusion

Although institutional dialogue certainly has its own pitfalls, it might be the best means by which Americans can expect a proper resolution to rights clashes for several reasons. It allows for compromise, the benefit of private dispute resolution. Yet it avoids the problem of private resolution, which is that the results rely on legal institutions without resolving their challenges. That problem is eliminated because political-judicial dialogue is rooted in legal institutions; it checks and balances their individual weaknesses. Thus it preserves the possibility of a principled result, at least in the long-term.

Acknowledgments:

Copyright © 2010 Georgetown Law Journal.

Laura K. Klein is a 2010 J.D. Candidate at Georgetown University Law School.

This Legal Workshop Editorial is based on the following Student Note: Laura K. Klein, Rights Clash: How Conflicts Between Gay Rights and Religious Freedoms Challenge the Legal System, 98 GEO. L.J. (forthcoming 2010).

Protecting Them from Themselves reveals and analyzes the mutual benefits argument to make three points. First, judges, legislators, and commentators defending contemporary laws and policies frequently claim that restricting rights and opportunities protects women and people of color. The claims appear across a range of contexts, but their common structure has remained hidden from view and critical scrutiny. Second, modern mutual benefits discourse has deep historical roots in widely repudiated forms of discrimination, including slavery, racial segregation, and women’s legalized inequality. Third, the historical deployment of mutual benefits arguments to defend pernicious discrimination creates reason for caution in considering contemporary mutual benefits claims that are now accepted quickly with little evidence, investigation, or debate. Mutual benefits discourse historically operated to rationalize and reinforce discriminatory practices that the nation has since disavowed. Modern mutual benefits arguments must be evaluated carefully or they risk shielding subordination once again.

 
Modern Mutual Benefits Arguments for Limiting Women’s Rights

Protecting Them from Themselves begins by examining contemporary mutual benefits discourse. I first explore how arguments contending that restrictions on women’s legal rights promote women’s welfare have flourished in the modern era, building on the assumption that women’s true interests and ultimate obligations center on marriage and family life. At least twenty-four states, for instance, retain some form of a marital rape exemption. These states criminalize fewer offenses if committed within marriage, punish more leniently the marital rape they do recognize, and/or impose additional procedural barriers to marital rape prosecutions. Legislators, courts, and commentators have explained since the last quarter of the twentieth century that granting wives an unhindered right to pursue marital rape charges would allow women to shatter their marital harmony, destroy their marital privacy, and make marital reconciliation much more difficult. This argument maintains that both husbands and wives are better off if the law limits the criminality of marital rape, although the benefits to men and women differ. Marital rape exemptions protect husbands from prosecution and wives from damage to their marital relationship assertedly more harmful to them than the marital rape itself.

Similar arguments that limiting women’s rights serves women’s best interests have increasingly come to shape antiabortion legislation and the Supreme Court’s abortion jurisprudence. Roe v. Wade (1973)¹ stressed the need to mediate between competing rights and interests: a woman’s right to have an abortion versus a state’s interest in protecting women’s health and the potential life of the fetus. Since Roe, however, the antiabortion movement has recognized in increasingly explicit terms that many Americans are unwilling to criminalize abortion if doing so will harm women. The movement and its government allies have turned more and more to the language of aligned interests rather than competing rights, insisting that both women seeking abortions and people opposed to abortion are better off if the law restricts or prohibits abortion. This argument contends that antiabortion laws protect women from the psychological harm that abortion would inflict upon them and the regret they would and should experience after abortion. The argument visibly influenced the Court’s plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992),² which upheld mandatory waiting periods before abortion and “informed consent” laws designed to persuade women not to have abortions. The Court explicitly endorsed the assumption of regret in Gonzales v. Carhart (2007)³ with little discussion or explanation. Carhart upheld the federal prohibition of an abortion procedure—even where that procedure is the safest method of abortion—on the premise that some women will, and perhaps all women should, come to regret having abortions.

 
Mutual Benefits Arguments Against Affirmative Action

Protecting Them from Themselves next considers modern mutual benefits discourse in the racial context. Arguments that whites and people of color have aligned interests in defeating civil rights initiatives have become increasingly prominent in recent years. For example, the Supreme Court’s initial decisions restricting race-based government affirmative action programs and early academic criticism emphasized the conflicting interests of whites and people of color, and the burdens that affirmative action imposed on whites. But the Court and academic critics abruptly switched focus within just a few years and a few opinions. More recent opposition to affirmative action has stressed that affirmative action policies must be severely restricted in scope and duration because otherwise these policies will harm people of color. This account contends that legal decisionmakers need not choose between competing sides because the people participating in affirmative action programs and the people opposed to those programs have shared interests. People of every race and with every view on affirmative action all purportedly benefit in their own way if affirmative action is first limited and then eliminated.

 
A Legal History of Mutual Benefits Arguments for Sexual and Racial Inequality

Protecting Them from Themselves proceeds to uncover the genealogy of mutual benefits claims, analyzing historical manifestations of mutual benefits discourse. The mutual benefits argument is not a recent innovation devised to respond to the demands of the contemporary civil rights era. It is a long-established claim that defenders of unequal status relations have repeatedly deployed, relying on the argument’s familiarity to bolster its plausibility. The contention that more rights would harm the rights holders appeared prominently in defenses of slavery, racial segregation, married women’s subordination to their husbands at common law, and legislation restricting women’s rights to negotiate about market work. Mutual benefits arguments for sex and race inequality especially proliferated in eras, like our own, when reform movements were vigorously working to improve the status of women and people of color. The reform efforts presumably undermined claims that the law should favor men over women, or whites over people of color. Historical mutual benefits arguments were nominally committed to helping women and people of color. But they consistently and explicitly assumed that women and people of color were unusually poor decisionmakers unable to assess their own interests, that women’s true concerns were confined to domesticity, and that people of color were better off the less they challenged and disturbed white people and white-dominated institutions. Connections between the defenses of slavery, segregation, and women’s legal inequality have rarely been noticed. Highlighting them uncovers important precursors to modern civil rights discourse.

 
Evaluating Mutual Benefits Arguments

The extensive use of mutual benefits claims to support now-rejected forms of discrimination should affect how we assess modern mutual benefits arguments. The fact that historical versions of the mutual benefits claim are no longer convincing does not necessarily mean that current or future expressions of the claim cannot be appropriate. Mutual benefits arguments may sometimes be reasonable and cogent. But the role that mutual benefits arguments played in defending pernicious forms of inequality creates grounds for caution in considering contemporary assertions that women and people of color are better off with limited rights and opportunities. Courts, legislators, and commentators may be predisposed to endorse these assertions quickly with little support, deliberation, or debate because the assertions resonate with a long history of mutual benefits arguments and invoke shared cultural memories of prior mutual benefits claims. The antecedent life of mutual benefits discourse can give modern mutual benefits arguments an inordinate power to persuade that makes explanation and elaboration seem unnecessary. Yet mutual benefits arguments were historically employed to support practices that are now repudiated, and they drew on ways of thinking about women and people of color that are now suspect. Whatever one’s views on the merits of legal paternalism as a general matter, there is reason to be cautious about contentions that all parties benefit when the law denies rights and opportunities to women and people of color.

Protecting Them from Themselves concludes by seeking to stimulate greater conversation about mutual benefits claims that are often accepted too easily. I use the reasons why historical mutual benefits arguments are unconvincing to formulate four practical criteria that judges, legislators, and commentators should apply in evaluating contemporary mutual benefits discourse. These criteria ask whether advocates asserting that rights and opportunities will injure women or people of color are consistent in their arguments, whether they present evidence of harm, whether they rely on narrow assumptions about how women or people of color should behave, and whether they engage with counterarguments and opposing viewpoints. I employ these criteria to assess several modern mutual benefits arguments.

Contemporary claims that women or people of color benefit from limited rights and opportunities have many of the same weaknesses as their historical precursors. First, judges, legislators, and commentators have been very selective in contending that people seeking rights and opportunities can be safely ignored because they fundamentally misunderstand their own interests. The law does not usually assume that people are radically mistaken about how to improve their lives and need to be protected from themselves. But claims that women or people of color will be worse off with more rights and choices are common. Second, the evidence that rights and opportunities harm women or people of color is sometimes questionably reliable, and sometimes simply nonexistent. Third, mutual benefits claims frequently depend on and enforce rigid, historically embedded assumptions about how women and people of color should think, act, and live. Modern mutual benefits arguments, like their historical predecessors, typically take for granted that women should orient their lives toward domesticity instead of male-dominated spheres such as the market. Similarly, contemporary mutual benefits arguments track historical patterns in presuming that people of color are better off the more they accommodate and the less they demand from white society. Finally, modern arguments about mutual benefits to women and men, or to people of color and whites, often avoid acknowledging any possible costs associated with restricting the rights and opportunities open to women and people of color.

History richly documents how mutual benefits claims have long served to rationalize and perpetuate legal hierarchies based on sex and race. This history also suggests criteria that legal authorities and advocates should employ in evaluating modern manifestations of mutual benefits discourse that are now accepted too readily. Applying these criteria can help assess arguments that risk reinforcing some of the nation’s most entrenched and intransigent forms of status inequality.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Jill Elaine Hasday is the Julius E. Davis Professor of Law at University of Minnesota Law School.

This Legal Workshop Editorial is based on the following Article: Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464 (2009).

As the Supreme Court summarized the theory in International Brotherhood of Teamsters v. United States, disparate impact discrimination is the use of “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.”² First announced by the Supreme Court in Griggs v. Duke Power Co., the theory required a plaintiff to establish a prima facie case of disparate impact discrimination by showing that the challenged employment practice, although facially neutral in its treatment of different groups, in fact fell more harshly on one group, say African Americans or women, than another group, say whites or males.  Once that prima facie case was established, the defendant had the burden of persuading the court that a “business necessity” or “job relation” justified the challenged practice. When the challenged practice was a test with a disparate impact, the employer carried this burden by establishing its validity under technical testing standards developed originally by industrial psychologists and later articulated in federal agency guidelines.

Although disparate impact had evolved in a variety of ways after Griggs, it suffered its first near-death experience in 1989 with the Supreme Court’s decision in Wards Cove Packing Co. v. Atonio. Wards Cove diluted the employer’s rebuttal case in two ways.  First, the Court redefined the concept of business necessity by taking out “necessity” and replacing it with the notion of reasonable employer justification. Second, Wards Cove stated that only a burden of production, not persuasion, passed to the defendant once the plaintiff established a prima facie case of disparate impact.³

Wards Cove was greeted with a firestorm of protest, culminating in the Civil Rights Act of 1991, which revived and, for the first time, explicitly codified the disparate impact theory in Title VII. Finding that Wards Cove had “weakened the scope and effectiveness of Federal civil rights protections,” Congress amended § 703 of Title VII by adding a new subsection (subsection (k)) declaring disparate impact discrimination an “unlawful employment practice.”  This codification shifted the burden of persuasion of justification back to the employer and, in a circuitous way, revived the Griggs standard of business necessity.

During the debates, Republican opposition to the resurrection of disparate impact was premised on the claim that the theory required “quotas.” This opposition failed to derail the 1991 Act, but the quota question lingered below the surface.  Although disparate impact does not require racial quotas in the usual sense of the word, there clearly was a tension between disparate impact and disparate treatment.  As the Teamsters Court said:

“Disparate treatment” such as is alleged in the present case is the most easily understood type of discrimination.  The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.  Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.⁴

The question, lurking since Griggs was handed down, was whether efforts to avoid disparate impact liability by choosing employment practices with a lesser racial impact resulted in disparate treatment liability.  In other words, does an employer who rejects an employment practice that disparately impacts blacks (thus jumping out of the disparate impact pan) necessarily intentionally discriminate against whites (thus landing in the disparate treatment fire)?

Decided on the last day of the Court Term in 2009, Ricci v. DeStefano⁵ finally confronted this question.  The majority’s answer: a qualified yes—efforts to avoid disparate impact are sometimes actionable as disparate treatment.  Ricci reflected the familiar 5–4 split; Justice Kennedy wrote the majority opinion, in which Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined.  Justice Scalia, although joining in the Court’s opinion, also concurred separately, as did Justice Alito, with whom Justices Scalia and Thomas joined.  Justice Ginsburg wrote the dissent, which Justices Stevens, Breyer, and Souter joined.

At issue in Ricci was a civil service test for promotions in the New Haven, Conn., fire department.  The results showed a disparate impact against minorities in that African American firefighters passed the test at a lower rate than white firefighters.  Because of this impact, the city invalidated the test.  White firefighters, who were consequently denied the opportunity for promotion, sued under both Title VII and the Equal Protection Clause, claiming that the decision was racially motivated.  The Court, without reaching the constitutional question held that invalidating a test because of its impact on minorities was necessarily disparate treatment of whites under Title VII.

The majority did, however, carve out an exception to liability under the Act where “the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” To have such a strong basis, it is not enough that the employer show its actions have a disparate impact; rather, the employer must also have a strong basis to believe that it does not have a business necessity/job relation defense.  As the Court put it:

The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.  That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt.

The application of this newly-announced test was illustrated by the Court’s disposition of the case before it.  Although the district court, affirmed by the Second Circuit, had granted summary judgment for the employer, the Ricci majority gave summary judgment for the plaintiffs.  It found that there was not even a genuine issue of material fact whether the City had the requisite strong basis in evidence—it clearly did not.  Although there had been numerous hearings and submissions prior to the City’s cancellation of the test, there was relatively little analysis of the possible deficiencies of the test in terms of technical test validation requirements, which would have shown the absence of any business necessity.  The majority concluded that “there is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City.”

This holding suggests a kind of hierarchy of discrimination theories—that is, that disparate treatment is the core prohibition of Title VII, with disparate impact playing a lesser role.  In fact, the Court read the statute in this fashion, finding that disparate treatment was the thrust of Title VII as originally enacted, with disparate impact added only by the Civil Rights Act of 1991. The majority viewed a decision to avoid the disparate impact of a test on African Americans as necessarily constituting a decision to disadvantage the white beneficiaries of the test for racial reasons.  For the Court, Ricci was a classic case of disparate treatment, and, given that theory’s primacy, it held that such practices had to be stringently limited.  Nevertheless, the Court attempted to reconcile Title VII’s articulation of the two theories of liability by carving out a place for disparate impact: what would otherwise be actionable disparate treatment is permissible when the employer has a strong basis in evidence that the action was required by the disparate impact theory.

The majority bulwarked its argument by looking to §2000e-2(l), a provision added to Title VII by the 1991 Civil Rights Act, which bars adjusting test scores by race. Reading that clause expansively, the Court wrote:

If an employer cannot rescore a test based on the candidates’ race [], then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision.

Given this analysis, one might wonder why §2000e-2(l) did not play a larger role in the opinion.  After all, that section seems to dictate the Court’s opinion that cancellation of the test is prima facie unlawful. The answer might be that §2000e-2(l) is, on its face, limited to tests, and the majority seems to have been seeking a broader rule applicable to all disparate impact scenarios.  In any event, to better understand the significance of Ricci, both for the future of the disparate impact theory and more broadly for Title VII, several issues must be explored.

I.
The Intent Element of Disparate Treatment

At first glance, the majority appears to declare that acting to avoid the disparate impact of a proposed employment practice is necessarily disparate treatment and therefore illegal unless within the “strong basis in evidence” safe harbor.  Although there is some basis for this reading, it is, ultimately, far too broad.  The broad reading can be drawn from a passage in which the majority states:

Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense.  All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates.  As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.

The Court went on to reject the district court’s ruling that an intent to avoid disparate impact liability meant that the City did not have the requisite intent for disparate treatment liability.  “Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race.”

There is considerable tension between this meaning of “because of” and the Court’s previous approach to the intent question.  In Personnel Administrator v. Feeney (admittedly decided in the Equal Protection context, where intent to act on a prohibited trait is required for heightened scrutiny), the Court held that “’Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences.  It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”⁶ It seems strange to view the city of New Haven as canceling the test because it wanted to disadvantage the white firefighters, although New Haven certainly knew that that would be the result.  A better reading of the facts (or at least a plausible one) is that New Haven acted to avoid disparate impact liability despite the “adverse effects upon an identifiable group” of whites.

If the lower courts apply this broad approach to intent in all disparate treatment cases, Ricci will expand Title VII to reach actions taken with knowledge of racial consequences, a view that must apply in both traditional and reverse discrimination cases.

But such a broad view of intent is contradicted by another passage in the opinion, one that seems to reject equating a racial motivation with intent.  Although the Court struck down the city’s cancellation of the test, it apparently allowed employers to take other actions on the basis of race:

Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. . . . Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end.

In the context in which it was written, this passage seems to mean that the employer could have adopted its testing (or other practices) to minimize the disparate impact, even though it could not invalidate a test, once it was given, for that reason.  For example, some of the alternatives that the Court rejected—such as the use of “assessment centers”—might well be appropriate when required at the “front end” in designing a selection process, rather than imposed on the “back end” by invalidating a test after it was administered.

What justifies an approach that seems to reject a straightforward causation analysis where racial consideration influences an employer’s decision-making?  There are three potential answers to this question.  First, perhaps the Court was reintroducing the Feeney distinction—namely, that intent to avoid disparate impact on minorities is not, per se, intent to disadvantage whites.  Second, the passage might simply suggest that Title VII’s creation of disparate impact liability, which requires parties to consider racial consequences and reduce adverse effects on racial minorities, is a broader exception to the statute’s ban on intentional discrimination than the Ricci majority seemed to say elsewhere.  Allowing potential racial effects to enter the calculus at the outset allows more play for disparate impact.  Third, the Court may have recognized that timing affects the expectations of white employees.  The majority in Ricci repeatedly referred to the white firefighters’ expectations of, and reliance on, the use of the test as a promotion method, neither of which would exist if the employer’s disparate impact calculations occurred early in the process.  It is not so clear how this “timeline approach” factors into the traditional disparate treatment analysis, but Ricci’s “strong basis in evidence” requirement may apply only to the end-stages of any selection process.  If so, employers would still be free to take potential racial impact into account in the early stages.

II.
Business Necessity/Job Relation/Alternative Employment Practice

There was no question in Ricci that the invalidated test had a disparate impact on African Americans and Latinos.  The Court noted that “[o]n the captain exam, the pass rate for white candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates.” Given the structure of the selection process, no African Americans would have been considered for promotion. Had the test been certified and a disparate impact case brought by black firefighters, the prima facie case would have been established, shifting the burden of proving business necessity and job relation to New Haven.

The Court acknowledged that the evidence of impact warranted a “hard look” by the city before certifying the results.  But for the majority that meant trying to ascertain whether going forward would be likely to result in disparate impact liability, which, in turn, meant that there was no business necessity, job relation, or alternative employment practices that would achieve the city’s performance goals with less racial impact.

The majority’s analytical structure requires importing the apparatus of disparate impact wholesale into the disparate treatment question.  Where the challenged practice is a test, this would require employers to apply the standards for test validation that the Equal Employment Opportunity Commission and the courts have developed. The majority in Ricci spent considerable time detailing how New Haven’s consultant had designed the test, which included detailed job analysis and test construction. Although the Court recognized that questions had been raised as to the test’s validity during hearings held to determine whether the test should be certified, it did not believe that the information developed provided a strong basis in evidence to doubt the test’s validity.  In other words, if the test had been certified and then black firefighters sued the city for disparate impact, the Court believed that those firefighters would have lost. Although testing has been the major success story of the disparate impact theory, disparate impact reaches all employment practices.  Thus, a real question in the wake of Ricci is what it means to have a strong basis in evidence for the absence of business necessity/job relation when something other than a test is in issue.  For example, one of the Supreme Court’s non-testing disparate impact cases, Dothard v. Rawlinson,⁷ involved an employer’s requirement that job applicants satisfy height and weight minima. Were potential male correctional officers to bring a Ricci-style suit today, claiming disparate treatment from the elimination of such requirements, it would seem relatively easy for the employer to show that it had no factual basis to support the job-relation of its former rule.

Further, at the early stages of an employer’s consideration of any selection or promotion process, it is hard to understand how the Ricci framework applies.  Imagine, for example, that a city is deciding whether to use a traditional test or an assessment center to promote firefighters.  This hypothetical city is aware that traditional tests tend to have a greater disparate impact than assessment centers, and, for that reason, it opts for the assessment center approach.  Since no test has been developed, much less administered, there cannot be a strong (or any) basis in evidence to think that the test that might have been used would have been invalid.  Thus, the whole Ricci framework is likely inapplicable to this situation.

An additional question arises with regard to possible alternative selection processes.  The Ricci Court explicitly recognized that, under Title VII’s express terms, even a valid test cannot be used “if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt.” Although the alternative business practice doctrine has not yet had much traction in disparate impact cases, the Ricci majority spent considerable time exploring whether there was a genuine issue of material fact of the existence of such an alternative.

The majority rejected three possibilities—a different mix of oral and written tests; changing the “rule of three” as to who was interviewed on the basis of test results; and using an assessment center.  As for the ratio of oral to written scores in computing an overall score, there was no evidence that a different ratio would be “an equally valid way to determine whether candidates possess the proper mix of job knowledge and situational skills to earn promotions.”  The Court also thought it “could well have violated Title VII’s prohibition of altering test scores on the basis of race.” Second, the rule of three could not be interpreted to allow “banding” of scores (rounding all scores to the nearest whole number) because § 2000e-(l) prohibited such action: “Had the City reviewed the exam results and then adopted banding to make the minority test scores appear higher, it would have violated Title VII’s prohibition of adjusting test results on the basis of race.” Finally, using assessment centers instead of the test could not be justified on the record before the Court since there were, at most, “a few stray (and contradictory)” remarks regarding this alternative.

Although the Court’s analysis explains why a professionally designed test, once administered, may be hard to challenge, it also suggests that “the strong basis in evidence” justification for an employer’s acting to avoid potential practices with a disparate impact may not have as sweeping applicability as Ricci might first suggest.  Most of the Court’s reasoning is simply inapplicable to the initial decision to pursue a particular selection process.  And, if we take literally the language that “Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race,” Ricci does not mandate a strong basis in evidence for every employer action designed to avoid a disparate impact. Rather, it applies only to actions taken at the back-end of a selection process when employer or applicant expectations have crystallized and reliance on the process has begun.

III.
Strong Basis in Evidence

The core of the Court’s holding was the requirement of “a strong basis in evidence” for disparate impact liability in order to justify disparate treatment under Title VII.  For the Court, this standard required something less than proof by the employer that it would have been held liable had it gone forward with the test.  The majority viewed its rule as striking a balance between unacceptable alternatives. Thus, the Court looked to the 1991 codification of disparate impact as implying that, sometimes at least, avoiding disparate impact justifies disparate treatment. But even requiring an actual disparate impact violation “is overly simplistic and too restrictive of Title VII’s purpose,” since it would discourage voluntary compliance.  In contrast, “an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision” did not accord enough weight to the statute’s prohibition of disparate treatment discrimination. As the Court noted:

A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination.  That would amount to a de facto quota system, in which a focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.  Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance.

The Court thought “a more appropriate balance” could be struck by looking to its Equal Protection Clause cases, which allowed that “certain state actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a ‘strong basis in evidence’ that the remedial actions were necessary.”

The dissent would have applied a looser standard.  For Justice Ginsburg and the other dissenters, “an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.”  The dissent was not explicit about the meaning of its good-cause standard, which seems to require more than subjective good faith but not as much as the majority’s “strong basis in evidence” test.  However, Justice Ginsburg was critical of the majority’s balancing: “It is hard to see how [the majority’s] requirements differ from demanding that an employer establish ‘a provable, actual violation’ against itself.”

A.     The Intersection of the Two Theories

The majority in Ricci not only announced its new rule, but also applied it: rather than remanding the case to the district court for application of the strong basis in evidence test, the majority entered summary judgment against New Haven.  In short, the city had avoided potential disparate impact liability only by incurring liability under the disparate treatment theory.  But the rest of the opinion makes clear this case was not a lose-lose situation, because the city could have avoided liability under both disparate treatment and disparate impact had it had a strong basis in evidence that certifying the test would have led to disparate impact liability.

The majority ended its opinion by noting that “[o]ur holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions.” To this point, the Court may have been correct.  But a final sentence confused things.  Since the presumed remedy for the violation the Court found was certifying the test, the possibility of a suit by the black firefighters on disparate impact grounds remained.  In a strange passage, the Court addressed this possibility:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

However, the Court had previously held that canceling the test because of its disparate impact on minorities was necessarily disparate treatment of whites, even though such liability could be avoided under the strong basis in evidence rule.  Thus, there is no doubt about the risk of such liability.  The whole point of the opinion is that such risk is insufficient to justify rejecting the disparate impact theory.

The final passage, then, makes sense only when read in the context of the rest of the opinion: there is no disparate impact liability when the predicates are not present.  But if there is an unjustified disparate impact, an employer seeking to comply with the law presumably must refuse to certify the test, despite the resulting disparate treatment of whites.  This interpretation complies with the mandate of disparate impact while fitting within the “strong basis in evidence” safe harbor for disparate treatment.

Notice, however, that the Court’s opinion creates a gap: there is no liability under either theory if the employer cancels a test on the basis of a strong basis in evidence of unjustified disparate impact.  But if the employer implements the test, even though it has a strong basis in evidence for believing it will violate the disparate impact provision, the employer does not necessarily violate the law.  The employer may avoid liability because there is no disparate treatment and there has to be an actual violation of disparate impact before the employer is held liable under that theory—a strong basis is not enough.

B.     Precluding the African American Firefighters from Suing

A final problem arises in the hypothetical disparate impact suit the Court mentions.  Indeed, it’s not so hypothetical—such a suit has now been filed. Summary judgment to the white firefighters in Ricci itself does not, as a matter of either logic or law, mean that the disparate impact is necessarily justified or that there were not suitable alternative employment practices.  From a logical perspective, the fact that an employer failed to adduce sufficient evidence to meet the strong basis in evidence standard of Ricci does not mean that the evidence does not exist.  In Ricci itself, the city of New Haven made some efforts to ascertain if there were problems with the test or its alternatives, and, according to the Court, failed to elicit such a basis.  However, the city’s efforts might not have been very effective, and, regardless of the situation in New Haven, a disparate impact defendant cannot be allowed to avoid liability under that theory by merely failing to explore the alternatives and then claiming that to act in any other way would result in disparate treatment.

Further, from a civil procedure perspective, the normal rule is that the black firefighters may not be bound by a judgment in a case in which they are not parties.  So held Martin v. Wilks,⁸ another firefighter case in which white firefighters challenged promotions awarded to African Americans under a consent decree in a suit in which the white plaintiffs were not parties.  The Supreme Court held that the whites could not be bound by the prior litigation.  Martin thus suggests that Ricci is wrong to the extent it may be said to prejudge a disparate impact claim by African American firefighters against New Haven.

However, in what might be the final irony of this saga, the 1991 Civil Rights Act that codified disparate impact also modified Martin v. Wilks.  In an effort to help minority and female plaintiffs retain the gains they made in employment discrimination suits, Congress provided that a prior decree in a civil rights suit can bind nonparties if they either (1) had notice and the opportunity to intervene or (2) were adequately represented in the earlier suit. Assuming that this statute comports with due process, it seems likely that at least one prong will be met, which would allow the white firefighters to retain the gains they made in Ricci.

IV.
Another Congressional Fix?

Congress rode to the rescue of the disparate impact theory when Wards Cove undercut it in 1989. The stars would seem even more favorable for such a rescue from the effects of Ricci. In 1991, there were Democratic majorities in both houses but a Republican president; today, there is also a Democratic President who has embraced civil rights.  But the path might not be so easy.  In what might have been intended as a warning to Congress not to override the Ricci majority’s interpretation of Title VII, Justice Scalia’s Ricci concurrence stressed that the majority’s “resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” This question is beyond the scope of the current discussion, but it is interesting to note that both Justice Scalia’s concurrence and Justice Ginsburg’s dissent cited Professor Richard Primus’s article on the issue. Professor Primus basically argues that a mechanical application of equal protection jurisprudence could invalidate the disparate impact theory (presumably the point of Justice Scalia’s citation⁹), but that a more purposive analysis would permit it.  Justice Ginsburg quoted Primus as saying that “[t]he very radicalism of holding disparate impact doctrine unconstitutional . . . suggests that only a very uncompromising court would issue such a decision.”

Conclusion

In terms of advice to employers, it would seem that, at least theoretically, Ricci made things more complicated.  Disparate treatment of minorities remains forbidden.  Disparate treatment of white males remains forbidden—except to avoid disparate impact against minorities.  Disparate impact (that is, unjustified disparate impact) against minorities remains forbidden.  The leeway employers had to avoid potential disparate impact suits has been narrowed considerably, but employers still need to assess the impact, the justifications, and the alternatives of various potential courses of action before proceeding. Finally, even where the possibility of disparate impact liability is influencing a course of action, the employer may well remain free to take racial impact into account in choosing among various alternatives (free of disparate impact liability), as long as it does so early enough to avoid disrupting settled expectations.

Acknowledgments:

Copyright © 2010 Northwestern University Law Review.

Professor Charles A. Sullivan is Professor of Law at Seton Hall University Law School.

This Legal Workshop Editorial is based on the following Article: Charles A. Sullivan, Ricci v. Destefano: End of the Line or Just Another Turn on the Disparate Impact Road?, 104 NW. U. L. REV. 201 (2009).

A more narrowly tailored way to protect property rights in the context of takings for private economic development focuses on the word “use” rather than the word “public” in the Fifth Amendment.³ Instead of requiring that takings be proposed for a purpose more “public” than private economic development, I would require that land taken for private economic development actually be used for the claimed public purpose.

My proposal would address two troubling aspects of current takings law.  First, current law allows for the taking of private land without assurance that a public benefit will ever be realized, such as with a taking justified by a development plan.  When the Court approves such a taking based on the public benefit promised by the plan, the owner has no remedy even if the proponent of the plan abandons the project and the public purpose is never realized.   This possibility has become reality in the aftermath of the takings at issue in Kelo.  Not only has no development occurred on the taken land, but Pfizer Inc. announced on November 9, 2009, that it will close the New London research facility that the development planned for the taken land was internded to complement.⁴ There is no prospect of public benefit being achieved on the taken land, and the former property owners have no claims.

Second, current law creates incentives that encourage inefficient takings, by which I mean takings where the political and legal costs are greater than the public benefit achieved.  These occur, at least in part, because the Court’s failure to require actual public use of taken land allows for takings based on exaggerated public benefits.  The following stylized analysis illustrates how the interaction between a government and a private developer seeking a taking leads to condemnations based on misinformation.

I.
The Problem of Inefficient Takings: A Simple Model

The process of taking land starts with a proponent, who I assume is a private developer.  After failing to convince a landowner to sell a parcel, the proponent proposes to a government that the land in question be taken via eminent domain.  The government responds by asking what public benefit will justify the use of this power.  The developer is unsure of the public benefit of the project, but she knows she needs the land to proceed and that current law will not force her to provide whatever public benefit she promises.  Additionally, the developer does not know how much benefit the government wants for the taking, and she wants to avoid underbidding.  The developer thus has every incentive to exaggerate her estimate of public benefit.

But why would the government accept these exaggerated claims of public benefit?  First, the government may actually believe the claims made by a private proponent, accepting them based on wishful thinking.  Officials, presumably feeling they have little to lose, may be willing to embrace exaggerated claims in hopes of fostering optimism and change.

Second, government officials may not be pursuing the public interest single-mindedly.  Instead, they may take their self-interest as well as the public interest into account when considering a proposed condemnation.  Government officials reviewing a request for a taking might be willing to embrace an implausible public benefit estimate for a number of self-interested reasons.  For example, officials concerned about their prospects for reelection might encourage development regardless of its likelihood of success so that voters will see them as taking action to address widely publicized problems such as urban blight.  After all, voters will not know the plausibility of the projects in the short term.  Another self-interested reason that government officials might accept inflated public benefit claims would be to garner political support from powerful interest groups, which could provide campaign financing and loyal constituents.

II.
The Solution: An Actual Use Requirement

My proposal solves this inefficient takings problem by focusing on changing the behavior of private actors while also making condemnees whole.  By forcing private developers to substantially deliver on their promises of public benefit or pay damages severe enough to deter, an actual use requirement would make real the imaginary currency of public benefit.  A developer would carefully consider all elements of a proposal that claims to yield a certain public benefit because she would be committed to substantially completing that proposal.  Completing an element of the plan that was supposed to provide a benefit—a hotel that would employ 100, for example—would be extremely expensive if the market could not support the element (for example, if demand for hotel rooms proved inadequate).  Thus, the developer would no longer have an incentive to exaggerate.

With an actual use requirement, the proponent would approach the government with an accurate estimate of the public benefit.  The public-minded government then could compare the condemnation cost with the public benefit using accurate information and make a good-faith takings decision.  The respective roles played by the legislative and judicial branches would not change, but each party would be better able to fulfill its current role because it would have more complete information.  A political branch remains empowered to make the political decision of how to expend public resources by taking land.  This is important not just because the Supreme Court demands it,⁵ but because the legislature, with its closer ties to the community in question and greater access to expert planners, is better positioned to evaluate a proposed development than the courts.

III.
The Remedy for Inefficient Takings

A fairly simple remedy would serve to deter inefficient takings.  When the public purpose that originally justified a taking is not substantially realized, the land must be returned to the condemnee, if practicable, in exchange for the compensation originally paid for the taking, and the condemnee must get damages to compensate her for the inconvenience of being forced from her property, as well as mental and emotional damages.

Unfortunately, the first part of this remedy—the return of condemned land in exchange for the original just compensation—will often be impracticable.  If the condemnee does not discover the development is falling short of its proclaimed purpose until the site of her former home has become a putting green, she cannot simply seek an injunction ordering the return of her home:  To issue an injunction would be disproportionate or wasteful.  Meanwhile, the condemnee may have moved to another city and no longer desire to return to her home years after being removed from it.  To account for this reality, condemnees would also have the option to keep the just compensation and only sue for the additional damages.

The damages component of this remedy is derived from remedies in tort where the cause of action arises under the Constitution.  Constitutional torts generally are awarded like common law torts, with damages designed to compensate for the injury resulting from the violation of a constitutional right.  Here, damages would total the amount necessary to compensate the condemnee for being forced from her property for a period of years, and they would in many cases include a significant emotional distress element.  Awards would vary case by case.  For example, a large emotional distress award might be appropriate in the case of someone like Wilhelmina Dery, the 91-year-old New London resident forced from the home of her birth by the Kelo taking.  However, a lesser award with no emotional damage component would be appropriate if a vacant lot had been taken.  This flexibility would partially compensate condemnees for subjective value, something not achieved by any current remedies.

IV.
The Trigger for the Actual Use Remedy

The development plan used to justify a taking would determine whether the actual use remedy is triggered.  The development plan already plays a key role in takings law:  When the Supreme Court approves an economic development taking, it does not rule that a certain public benefit justifies taking private land but rather that a development plan promising some benefit does.  To ensure the benefit promised by the plan is realized, an actual use requirement recognizes a condemnee’s continuing interest in her property until the public benefit laid out in the approved development plan is substantially achieved.  If the plan justifies the taking, then it should be the substantial achievement of the benefit promised by the plan within the time frame of the plan that extinguishes a condemnee’s right in the property.  Essentially, an actual use requirement treats a taking for economic development by a private party as contingent upon completion of the justifying development.

Requiring developers to follow through substantially on the justifying development plan is important for several reasons.  First, it provides an affirmative guarantee that a public benefit will be achieved from the taking.  Current statutory and contractual guarantees generally only prevent developers from straying from the plan justifying a taking; they do not require them to actually fulfill the plan.

Second, the plan sets the physical and temporal standards that must be met to prevent a taking from being unconstitutional.  Once the plan is fulfilled in good faith, the Fifth Amendment’s demands are met.  The plan’s success would be measured by the completion of its physical goals, such as building a 350-room hotel within a certain time frame.  The completion of the development plan, in most cases, should serve as an adequate proxy for the public benefits the plan will create.  A rational developer would be unlikely to expend the resources to build a facility with capacity it did not believe it could utilize.

Developers also would be free to sell the property they received by a taking.  However, the sale would be subject to the development plan that justified the taking; the constitutional right of condemnees would run with the land and plan, allowing condemnees to press their claim against the new developer.

Finally, the plan would control the timing of the constitutional right.  Development plans set out time frames for the achievement of the public benefit they promise.  The substantial achievement of this public purpose within the promised time frame would extinguish condemnees’ constitutional interest in the land, in effect ending the contingency of the transfer.  However, it bears emphasizing that actual use calls for substantial and not complete compliance with the development plan.  This is essential to provide courts and developers with the wiggle room to prevent wastefulness when complete compliance becomes impractical for unforeseen reasons despite the good faith efforts of the developer.  Whether a project is substantially complete would be a case-by-case inquiry.

V.
Responses to Possible Objections

The temporal element of my proposal could inspire objection.  A critic could argue that extending the possibility of suit until a public purpose is achieved would lead to uncertainty for governments and developers, waste for society, and headaches for the courts.  Developers and governments seeking only fair profit and the public good could end up having to pay damages if a well-intentioned project fails for reasons beyond their control.  Meanwhile, courts might have to confront the same parties multiple times as condemnees presented new challenges.

Regarding uncertainty, there is no question an actual use requirement would add to the risk faced by proponents and governments.  This risk is not unfair, however, because these parties would be aware of it before taking the land.  Among the many factors a developer would want to consider when proposing a taking would be whether the project would be worthwhile even when discounted by the remote possibility of a catastrophic event.  The proponent would only seek takings with benefits so large that they justify the risk.

In the event that a developer did seek and win approval for a taking, one could argue that forcing the developer to finish a project in the face of more socially advantageous alternatives would be wasteful.  However, an actual use requirement would permit solutions commonly used by businesses to deal with this situation, such as efficient breach.  A developer might very well opt out of her development plan if other opportunities were lucrative enough.  Of course, given the expense of the actual use remedy, breach would be efficient less often than under a standard contract.  But developers engaging in takings under an actual use regime would be well aware of the damages they face and thus would weigh this risk when considering whether to take on a project.

Moreover, an actual use requirement is not intended to provide a business environment on par with one that does not require the government’s coercive power to take land.  Rather, it is intended to protect constitutional property rights by giving developers the incentive to provide governments with accurate information on which to base their takings decisions.

Acknowledgments:

Copyright © 2009 New York University Law Review.

William A. Curran received his J.D. from New York University School of Law in 2009.

This Legal Workshop Editorial is based on Mr. Curran’s Student Note: William A. Curran, Preventing Real Takings for Imaginary Purposes: A Post-Kelo Public Use Proposal, 84 N.Y.U. L. REV. 1656 (2009).

The importance of diversity in higher education cannot be overstated:  The Supreme Court has recognized diversity as one of the extremely limited number of compelling state interests that may justify race-based classifications under the Equal Protection Clause of the Fourteenth Amendment.  However, without explicit guidance from the Supreme Court, colleges have responded to pressure from anti-affirmative action groups by choosing to end or change their programs rather than push the constitutional boundaries of what may be done to improve the recruitment and retention of minority students.  This Note tries to discourage that reaction, arguing that colleges may, consistent with the Constitution, maintain race-exclusive and race-targeted³ recruitment and retention programs.

 
I.
The Grutter Standard in University Recruitment and Retention Programs

In many ways, recruitment and retention programs are an entirely separate means of achieving diversity from admissions programs—they address the quality of the educational experience available to particular students where admissions programs dispense specific seats in universities and colleges to minorities—and therefore demand an entirely separate framework for determining their constitutionality.⁴ However, the Supreme Court’s admissions decisions have been used to evaluate all diversity programs in higher education and are likely to continue to play an important role in any future consideration of recruitment and retention by the Court.  Thus, this Note evaluates recruitment and retention programs through the lens of Gratz and Grutter.

The Supreme Court has clearly stated, and repeatedly reaffirmed, that achieving diversity in higher education is a compelling state interest.  Thus, any analysis of minority recruitment and retention programs is likely to focus solely on whether the programs are narrowly tailored to achieving their express goal of diversity.  The Grutter standard for narrow tailoring requires that an admissions plan meet four criteria:  (1) Each applicant must be considered individually; (2) the university must first undertake a “serious, good faith consideration of workable race-neutral alternatives” for achieving diversity; (3) the program must “not unduly harm members of any racial group”; and (4) it “must be limited in time.”⁵

The fourth prong may be met with relative ease:  The college or university must simply commit to reevaluating the need for its programs periodically or create an automatic sunset provision for the programs.

To meet the second prong, a college or university first must show that it has considered race-neutral alternatives to programs utilizing race-based decisionmaking and has rejected them only because they are insufficient to achieve meaningful diversity or require the school to sacrifice academic quality.  Colleges can meet this requirement with respect to race-targeted or race-exclusive programs for minority recruitment and retention because, to be truly effective, such programs must explicitly identify, acknowledge, and target the problems that are unique to the minority experience in higher education.  Unlike admissions, where each candidate is fighting for a spot at a particular institution for which individuals of all races are qualified, recruitment and retention programs address factors and problems that are particular to certain minority students:  problems that cannot be rectified without acknowledgement of these unique circumstances.⁶ Thus, race-exclusive and race-targeted programs may be shown to be the only means of addressing these challenges.

The first and third prongs of the narrow tailoring analysis in Grutter require individualized consideration of applicants and avoidance of undue harm to any racial group.  This Note makes two arguments in the alternative regarding these prongs:  First, except in the context of financial aid, individualized consideration should not be a necessary element of a narrowly tailored recruitment or retention program because such programs do not cause undue harm to other racial groups.  Second, even if individualized consideration is deemed necessary, colleges may take several steps to incorporate individualized consideration into their programs and thus survive strict scrutiny.

 
II.
Recruitment and Retention Programs Without Individualized Consideration

In Grutter, the Supreme Court wrote that “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.”⁷ In other words, individualized consideration was the element of the admissions program that satisfied the requirement that there be no undue burden on nonminority students as a result of race-based decisionmaking.  In this way, individualized consideration can be read not as a separate, independent requirement, but as merely one way of satisfying the “no harm” requirement.  Because recruitment and retention programs do not place an undue burden on nonminority applicants even absent individualized consideration, individualized consideration should not be separately necessary in order for these programs to be sufficiently narrowly tailored.

Unlike admissions decisions, which allocate limited spots within a college or university, outreach and retention programs are designed to address specific problems that are in many ways unique to minority students.  While these programs allocate a distinct benefit to minorities, such as academic assistance or mentoring, they do not deny a benefit to any other racial group.  They do not simply apportion limited resources to minority students over nonminorities but rather create necessary resources to ensure those minority students arrive and remain at their institutions.  These programs leave nonminorities in the same position that they would have been in absent such programs.  Thus, these programs inherently satisfy the “no harm” requirement even if they do not involve individualized consideration.

 
III.
Modifying Recruitment and Retention Programs To Incorporate Individualized Consideration

Schools that do not wish to argue that recruitment and retention programs do not require individualized consideration may, in the alternative, incorporate individualized consideration into such programs.  Race-targeted programs are much more likely to be able to incorporate individualized consideration than race-exclusive ones.  Many programs—such as mentoring, academic, summer bridge, counseling, and financial aid programs—may easily be designed so that entry to participation mirrors the admissions program approved by the Court in Grutter.  However, in contrast with admissions programs—where institutions must consider all the facets of diversity necessary to create an optimal class of admitted students—recruitment and retention programs consider whether an individual student faces particular challenges that make him or her less likely to enroll or persist in school.  Thus, even with individualized consideration, these programs are likely to be highly targeted toward minority students and may thus achieve their intended objectives.

 
Conclusion

Absent explicit guidance from the Supreme Court, colleges may be wary of standing up to pressure from affirmative action opponents who seek to end all race-conscious programs in higher education.  However, given the extremely important role such programs play in improving the racial diversity of institutions of higher education—especially as state initiatives and the Supreme Court’s admissions decisions have limited the extent to which admissions can be used to achieve diversity—colleges should consider carefully whether there are ways of demonstrating that their current programs are narrowly tailored to achieve diversity or, alternatively, tailoring their programs to the existing guidance provided by the Supreme Court.  Though many schools may be reluctant to gamble on the likelihood that the Court will approve their programs, the vital need for race-conscious recruitment and retention programs justifies the aggressive design of these programs to achieve maximum impact while complying with the Equal Protection Clause.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Ellison S. Ward received her J.D. from New York University School of Law.

This Legal Workshop Editorial is based on her Student Note: Ellison S. Ward, Toward Constitutional Minority Recruitment and Retention Programs: A Narrowly Tailored Approach, 84 N.Y.U. L. REV. 609 (2009).

In Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction,¹ Professor Dan Markel “reimagine[s]” the law and proposes an interesting theory of punitive damages.² Unlike work by other scholars,³ Professor Markel intentionally situates his theory of “retributive damages” outside the historical framework and doctrinal limits of punitive damages.  Instead, Professor Markel argues that states should replace the current punitive damages framework with a new statutory scheme akin to the federal sentencing guidelines.  Though satisfying on a purely theoretical level, Professor Markel’s paradigm raises two initial questions.  First, can the “retributive damages” model properly be considered punitive damages?  Second, do “retributive damages” avoid the doctrinal problems that have plagued punitive damages for decades?  In my view, the answer to both questions is “no.”

 
I.
It’s Not “Punitive Damages”

In this first article in a planned quartet, Professor Markel proposes using public retributive justice theory to frame a new system of punitive damages.  Under his proposal, state legislatures would define the conduct subject to retributive damages by statute.  Plaintiffs who were harmed by a defendant’s violation of the retributive damages statute could seek retributive damages as a remedy in a traditional tort action.  However, if the plaintiff chose to forgo retributive damages or if the statutory violation did not cause any harm, private attorneys general could bring an action for retributive damages alone.  In either case, the jury would use a set of legislative guidelines to determine a reprehensibility “score” for the defendant’s conduct.  In a structure similar to the criminal sentencing guidelines, the judge would then take the jury’s reprehensibility score and apply it to a statutorily defined table setting the amount of damages based on the defendant’s wealth.  Next, courts would evaluate the profitability of the defendant’s conduct.  If the reprehensibility-based damages combined with compensatory damages did not eliminate the profit from the defendant’s wrongdoing, courts also would impose a gain-elimination penalty.  The reprehensibility penalty and the gain-elimination penalty would both be paid to the state and could be credited against future criminal sanctions.  To encourage suits under this scheme, the defendant would be required to pay a fixed $10,000 award to the named plaintiff as well as the plaintiff’s attorney’s fees.  Finally, a plaintiff could not settle a retributive damages claim without state approval.

Putting aside the merits of Professor Markel’s retributive damages scheme as a type of damages, one thing is clear: it is not punitive damages.  Like Professor Markel’s “retributive damages,” punitive damages are “extra-compensatory” in that both types of awards exceed the plaintiff’s actual harm.⁴ But that’s where the similarities end.  Unlike the statutory scheme envisioned by Professor Markel, punitive damages are a type of common law damages available in a civil tort suit by a private plaintiff.⁵ In most states, juries are instructed to calculate the amount of punitive damages based on a variety of factors.⁶ Those factors include the reprehensibility of the defendant’s conduct, but they also include numerous other factors.⁷ Moreover, in most states, plaintiffs keep the bulk of a punitive damages award.⁸

Professor Markel would change so many of these characteristics that it is impossible to consider his proposal a form of “punitive damages.”  Consider just a few of the differences.  Retributive damages can be pursued by uninjured third parties or the state itself; punitive damages can be pursued only by the tort victim.  Retributive damages are awarded wholly to the state; punitive damages are awarded to the private plaintiff.  Retributive damages are calculated according to a statutorily defined table; punitive damages are calculated by a jury according to common law principles.  Retributive damages cannot be settled without the approval of the state; punitive damages can be settled at the will of the parties.

To be sure, scholars have criticized many of these features of punitive damages.⁹ And it is true that judicial opinions largely have failed to articulate a coherent rationale for punitive damages.  Nevertheless, despite the ongoing debate about the theoretical justifications for punitive damages, nearly all fifty states and federal courts have accepted the doctrine of punitive damages.¹⁰ Indeed, punitive damages have a long historical pedigree dating back to the Hammurabi Code in 2000 B.C.¹¹

 
II.
A Few Due Process Problems with “Retributive Damages”

The question then becomes whether “retributive damages” would be better than the current system of punitive damages.  Because Professor Markel’s article is only the first of a planned series, much is left unanswered at this stage, which makes a complete assessment of “retributive damages” difficult.  I’d like to consider a couple of threshold due process issues.

As an initial matter, tying the amount of the retributive damages award to the defendant’s wealth, as Professor Markel’s model would do, raises facial due process concerns.¹² Under Philip Morris v. Williams, the Court held that “the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon non-parties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.”¹³ In addition, under State Farm v. Campbell, “[a] State cannot punish a defendant for conduct that may have been lawful where it occurred.”¹⁴ Nor can a state punish the defendant for unlawful conduct outside its jurisdiction.¹⁵ Basing a retributive damages award on a defendant’s wealth, however, risks punishing a defendant for harm to non-parties in violation of Philip Morris, and further risks punishing a defendant for lawful conduct and out-of-state conduct in violation of State Farm.¹⁶

Moreover, anchoring the amount of a penalty to the defendant’s wealth does not take into account the second BMW guidepost: the ratio between the extra-compensatory award and “the actual harm inflicted on the plaintiff.”¹⁷ Although Professor Markel correctly notes that “harm” is not per se limited to compensatory damages alone, his retributive damages scheme does not provide room for the jury—or judge on post-verdict review—to evaluate the reasonable relationship requirement.  In response, Professor Markel points to the legislative foundation of his new system and argues that the statutory nature of retributive damages justifies greater deference by courts.  Thus, he suggests that the reasonable relationship requirement would not apply to “retributive damages.”  As I previously have argued,¹⁸ however, legislative penalties are not immune from constitutional scrutiny.  Rather, the Supreme Court has applied the same constitutional excessiveness standards, including the reasonable relationship requirement, to jury awards of punitive damages as well as criminal fines and sentences.¹⁹ Thus, this constitutional requirement cannot be ignored.

Finally, allowing a private attorney general to sue based on harm to a non-party violates the black letter of Philip Morris. Professor Markel acknowledges this issue, but he argues that the retributive damages scheme survives constitutional scrutiny because the private attorney general “is not suing to recover for harm to the victim, but rather to initiate an intermediate sanction for the defendant’s wrongful conduct.”²⁰ This argument misses the mark.  The Supreme Court stated unambiguously that the amount of a punitive damages award must be tied to the harm to the individual plaintiff: a punitive damages award cannot be used “to punish a defendant directly on account of harms it is alleged to have visited on nonparties.”²¹ Moreover, allowing a retributive damages award to be based on harm to non-parties would prevent the defendant from raising all possible defenses.  In Philip Morris, for example, the Court noted that other allegedly injured smokers might have known smoking was dangerous or might not have relied upon the defendant’s statements.²² Professor Markel’s retributive damages scheme raises similar concerns.

 
III.
Conclusion

In short, Professor Markel does not suggest a new theory of punitive damages that harmonizes the rather confused law in this area.  Rather, he offers a new statutory civil penalty system, and it remains unclear whether this system will survive due process scrutiny.  Beyond these questions, I wonder about the inevitable issues that would arise from a system that combines aspects of the harshly criticized sentencing guidelines with the complexity of qui tam law added on top of existing punitive damages jurisprudence.  I look forward to seeing how Professor Markel addresses these and other underlying issues in his subsequent pieces.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Sheila B. Scheuerman is Associate Professor of Law at Charleston School of Law.

Special thanks to Keith N. Hylton, Anthony J. Sebok, Christopher J. Robinette, and Benjamin C. Zipursky for comments.

This Editorial is a response to the following Legal Workshop Editorial:  Dan Markel, Retributive Damages as Intermediate Public Sanctions: A Synopsis, LEGAL WORKSHOP (May 12, 2009), based on A Theory of Punitive Damages as Intermediate Sanction, 94 CORNELL L. REV. 239 (2009).
Click Here for the Markel Legal Workshop Editorial.
Click Here for the full Markel Article.

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