Tennessee Journal of Race, Gender, & Social Justice by Tennessee Journal of Race, Gender, & Social Justice

RGSJ TENNESSEE JOURNAL OF RACE, GENDER, & SOCIAL JUSTICE FALL 2012 Allen v. Totes/Isotoner Corporation: A Cautionary Tale for Breastfeeding Working Mothers Erin Davenport Condorcet Defeated: A Malthusian History of Affirmative Action from Bakke to Fisher William J. Bogard

CASE SYNOPSES A Spectator Sport Without Spectators: Discrimination in Girls’ Athletics Erika Denslow Immigration Obstacles and the Sixth Circuit Court’s Harsh Interpretation of Legal Permanent Resident Status Justin Boitnott Competent Translation of Hearsay Christina Magrans

A Publication of the University of Tennessee College of Law

VOLUME 1

FALL 2012

NUMBER 197

RGSJ The Tennessee Journal of Race, Gender, & Social Justice VOLUME 1

RACHEL CLARK Acquisitions Editor JOHN CRAIG HOWELL Executive Symposium Editor

BUKI BARUWA JENNIE CHAN FRANCIS CUDDIHEE

FALL 2012 EDITORIAL BOARD KIMEL I. FRYER Editor-in-Chief ANNE HERSHEWE ALISON SMOCK JEN ROCHE Managing Editor

THIRD-YEAR MEMBERS COURTNEY HOUPT LEIGH IMHOFF JAEHEE JANG

SECOND-YEAR MEMBERS JUSTIN BOITNOTT ERIKA DENSLOW RYAN GARDNER CASSANDRA STRUNK FACULTY ADVISORS DR. JUDY CORNETT, M.A., J.D., PH.D., Associate Professor of Law MICHAEL HIGDON, B.A., J.D., M.A., Director of Legal Writing & Associate Professor of Law

ISSUE 2

ANGELICA FORTNEY Executive Editor TODD DAVIS DANIEL HALL Research Editor

CHRISTINA MAGRANS ALLISON MANNING MATT ROBINSON

RGSJ THE TENNESSEE JOURNAL OF RACE, GENDER, & SOCIAL JUSTICE RGSJ: The Tennessee Journal of Race, Gender, & Social Justice is published semi-annually and edited by students of the University of Tennessee College of Law. The publisher is The Tennessee Journal of Race, Gender, & Social Justice c/o The University of Tennessee College of Law, 1505 W. Cumberland Ave., Knoxville, Tennessee 37996-1810. To order back issues, contact Graphic Arts Service at 2021 Stephenson Drive, Knoxville, Tennessee 37996, or call at (865) 974-5121. For general inquiries, please email rgsj@utk.edu.

THE UNIVERSITY OF TENNESSEE COLLEGE OF LAW UNIVERSITY ADMINISTRATION JOE DIPIETRO, B.A., M.D., President JIMMY G. CHEEK, B.S., M.Ed., Ph.D., Chancellor COLLEGE OF LAW ADMINISTRATION DOUGLAS A. BLAZE, B.S., J.D., Dean and Art Stolnitz & Elvin E. Overton Distinguished Professor of Law CAROL M. PARKER, B.A., M.A., J.D., Associate Dean for Academic Affairs and Professor of Law GREGORY M. STEIN, A.B., J.D., Associate Dean for Faculty Development and Woolf, McClane, Bright, Allen & Carpenter Distinguished Professor of Law SCOTT CHILDS, B.S., J.D., M.L.S., Associate Dean for Library and Technology Services and Associate Professor of Law KATRICE J. MORGAN, B.A., J.D., Assistant Dean of Student Affairs VALORIE VOJDIK, A.B., J.D., Director of Clinical Programs and Professor of Law PENNY J. WHITE, B.S., J.D., LL.M., Director of the Center for Advocacy and Elvin E. Overton Distinguished Professor of Law GEORGE W. KUNEY, B.A., M.B.A., J.D., Director of the Clayton Center for Entrepreneurial Law and Lindsay Young Distinguished Professor of Law REBA A. BEST, B.S., M.L.S., Associate Director of The Law Library and Professor KAREN R. BRITTON, B.S., M.S., Ed.D., Director of Admissions, Financial Aid, and the Bettye B. Lewis Career Center HOWARD AVERY, B.S., M.Ed., Director of Development and Alumni Affairs R.G. SMITHSON, B.S., M.S., Director of Public Affairs TERESA L. PETERSON, B.S., Budget Director MARY ANN JAMES, Human Resources and Administration Manager

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COLLEGE OF LAW FACULTY DWIGHT L. AARONS, B.A., J.D., Associate Professor Of Law BRAD AREHART, B.A., J.D., Associate Professor of Law WENDY A. BACH, B.A., M.A., J.D., Associate Professor of Law BENJAMIN H. BARTON, B.A., J.D. Professor of Law JERRY P. BLACK, JR., B.A., J.D., Associate Professor of Law ROBERT C. BLITT, B.A., M.A., J.D., LL.M., Associate Professor of Law CATHLEEN COCHRAN, B.A., M.S.I.S., Computer Services Librarian and Associate Professor CAROL M. COLLINS, B.A., M.S., Catalog Librarian and Assistant Professor JOSEPH G. COOK, A.B., J.D., LL.M., Williford Gragg Distinguished Professor of Law JUDY M. CORNETT, B.A., J.D., M.A., Ph.D., College of Law Distinguished Professor of Law IRIS J. GOODWIN, A.B., Ph.D., J.D., Associate Professor of Law JOAN MACLEOD HEMINWAY, A.B., J.D., W.P. Toms Distinguished Professor of Law AMY MORRIS HESS, B.A., J.D., UTK Distinguished Service Professor of Law and Waller Lansden Dortch & Davis and

Williford Gragg Distinguished Professor of Law MICHAEL J. HIGDON, B.A., M.A., J.D., Director of Legal Writing and Associate Professor of Law BECKY L. JACOBS, B.S., J.D. Associate Professor of Law BRIAN KRUMM, B.A., M.P.A., J.D., Associate Professor of Law MICHELLE KWON, B.B.A., J.D., Associate Professor of Law DON A. LEATHERMAN, B.A., J.D., LL.M., W. Allen Separk Distinguished Professor of Law ALEX B. LONG, B.A., J.D., Associate Professor of Law SIBYL MARSHALL, B.A., J.D., M.L.S., Head of Public Services for the Law Library and Associate Professor KARLA MCKANDERS, B.A., J.D., Associate Professor of Law CARL A PIERCE, B.A., J.D., W. Allen Separk Distinguished Professor of Law THOMAS E. PLANK, A.B., J.D., Joel A. Katz Distinguished Professor of Law NATHAN A. PREUSS, B.A., J.D., M.S.L.S., Reference and Education Services Librarian and Assistant Professor M. LORETTA PRICE, B.A., M.S.L.S., Collection Management Department Head and Associate Professor GARY PULSINELLI, A.B., Ph.D., J.D., Associate Professor of Law

JOY RADICE, A.B., J.D., Associate Professor of Law GLENN H. REYNOLDS, B.A., J.D., Beauchamp Brogan Distinguished Professor of Law DEAN HILL RIVKIN, A.B., J.D., College of Law Distinguished Professor of Law PAULA SCHAEFER, B.A., J.D., Associate Professor of Law JOHN L. SOBIESKI, JR., B.S., J.D., Lindsay Young Distinguished Professor of Law MAURICE E. STUCKE, A.B., J.D., Associate Professor of Law KRIS ANNE TOBIS, B.S., J.D., L.L.M., M.L.I.S., Reference Librarian and Assistant Professor PAULA J. WILLIAMS, B.A., J.D., Associate Professor of Law DAVID WOLITZ, B.A., J.D., Associate Professor of Law

Elvin E. Overton Distinguished Professor of Law GRAYFRED B. GRAY, B.A., J.D., Associate Professor Of Law PATRICK HARDIN, B.A., J.D., W. Allen Separk Distinguished Professor Of Law JOSEPH H. KING, JR., B.A., J.D., Walter W. Bussart and UTK Distinguished Professor of Law ROBERT M. LLOYD, B.S.E., J.D., Lindsay Young Distinguished Professor Of Law D. CHERYN PICQUET, B.A., M.S.L.S., Professor Of Law OTIS H. STEPHENS, A.B., Ph.D., J.D., Alumni Distinguished Service Professor of Political Science and Resident Scholar of Constitutional Law RICHARD S. WIRTZ, B.A., M.P.A., J.D., Elvin E. Overton Distinguished Professor Of Law

FACULTY EMERITI GARY L. ANDERSON, S.B., J.D., LL.M., Associate Professor Of Law FRANCES LEE ANSLEY, B.A., J.D., LL.M., College Of Law Distinguished Professor Of Law WILLIAM J. BEINTEMA, B.B.A., J.D., M.S.L.S., Director Of The Law Library And Associate Professor NEIL P. COHEN, B.A., J.D., LL.M., UTK Distinguished Service Professor Of Law And W.P. Toms Professor Of Law THOMAS DAVIES, B.A., J.D.,

RGSJ The Tennessee Journal of Race, Gender, & Social Justice VOLUME 1

FALL 2012

ISSUE 2

ARTICLES ALLEN V. TOTES/ISOTONER CORPORATION: A CAUTIONARY TALE FOR BREASTFEEDING WORKING MOTHERS

Erin Davenport

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CONDORCET DEFEATED: A MALTHUSIAN HISTORY OF AFFIRMATIVE ACTION FROM BAKKE TO FISHER

William J. Bogard

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CASE SYNOPSES A SPECTATOR SPORT WITHOUT SPECTATORS: DISCRIMINATION IN GIRLS’ ATHLETICS

Erika Denslow

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IMMIGRATION OBSTACLES AND THE SIXTH CIRCUIT COURT’S HARSH INTERPRETATION OF LEGAL PERMANENT RESIDENT STATUS

Justin Boitnott

284

COMPETENT TRANSLATION OF HEARSAY

Christina Magrans

292

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ALLEN V. TOTES/ISOTONER CORPORATION: A CAUTIONARY TALE FOR BREASTFEEDING WORKING MOTHERS Erin Davenport TABLE OF CONTENTS INTRODUCTION ..............................................................................................199 PART I: STATISTICS ON WOMEN IN THE WORKPLACE ................................200 PART II: HISTORY OF PREGNANCY DISCRIMINATION .................................201 A. Equal Protection...............................................................................204 1. Geduldig v. Aiello ..................................................................205 B. Title VII ............................................................................................206 1. General Electric v. Gilbert ....................................................207 C. Title VII Amended: The Pregnancy Discrimination Act .............208 1. Newport News Shipbuilding & Dry Dock Co. v. EEOC ........209 2. Other Cases Construing the PDA ..........................................210 i. Maldonado v. U.S. Bank ............................................210 ii. Krauel v. Iowa Methodist Medical Center.................212 iii. Fleming v. Ayers & Associates ..................................212 iv. Abraham v. Graphic Arts International Union ..........213 v. In re Carnegie Center Associates ..............................214 PART III: ALLEN V. TOTES/ISOTONER CORP. AND RELATED CASES ............215 A. Ohio’s Statutory Context ................................................................215 B. Allen v. Totes/Isotoner Corp. ............................................................216 C. Other Cases.......................................................................................218 1. McNill v. New York City Dept. of Correction ........................218 2. Martinez v. NBC, Inc. ...........................................................219 3. Fejes v. Gilpin Ventures, Inc. ................................................221 4. Stanley v. Abacus Technology Corp. ....................................222 5. Dike v. School Board of Orange County, Florida .................223 6. Barrash v. Bowen ...................................................................225 PART IV: SURVEY OF STATE AND FEDERAL LAWS ......................................226 197

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A. Breastfeeding Statutes .....................................................................226 B. The “Mommy Wars” .......................................................................230 CONCLUSION .................................................................................................234

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INTRODUCTION The year of 2010 marked the ninetieth anniversary of the ratification of the Nineteenth Amendment, in which women fought for the right to vote and be treated as equals.1 Despite this achievement, women still fight for equal political, social, and economic status several decades later. This fight for equality remains especially prevalent in the workplace and mainly involves issues including work-life balance and salary disparities. While raising children is an important job for both parents, society views women as the primary childcare providers, imposing on working mothers the burden of balancing these responsibilities and societal perceptions.23 Despite an increase of women in the workplace, some employers may be reticent to grant necessary aid to working mothers, requiring these mothers to choose between a career and motherhood. Mothers who cannot afford to forgo a career or hire extra help must stretch themselves between their careers and their children. These struggles bear a stark contrast to the hopes for true equality of the women who advocated for the Nineteenth Amendment just ninety-two years ago. 1

With the right to vote, twenty-six million women voted in the 1920 presidential election. ELEANOR CLIFT, FOUNDING SISTERS AND THE NINETEENTH AMENDMENT 207 (2003). 2

This struggle between women’s roles existed in 1920 as evidenced by a 1920 ode, “To a Modern Woman.” The ode states, You’ve got the vote and you think it’s your mission, To go to the polls like a bum politician And while you are voting, your husband must roam, For something to eat which he can’t find at home. He’s getting dyspepsia and can’t work for pain, Your children neglected, ask for you in vain. While you make speeches from a broken soapbox. Your family is wearing soiled clothes and torn socks. Id. at 208.

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This article focuses on Allen v. Totes/Isotoner Corp.,4 an Ohio Supreme Court decision affirming summary judgment against the discrimination claim of a breastfeeding mother. Part I employs statistics to study the current status of working women and the perceptions they face at work. Part II examines the history of pregnancy discrimination. Part III evaluates Allen v. Totes/Isotoner in comparison to other cases involving breastfeeding discrimination. Part IV analyzes state and federal laws concerning breastfeeding laws and advises how Ohio might approach this issue in the future. Finally, the article concludes by considering what women can achieve through their right to vote and active participation in politics and the workplace. PART I: STATISTICS ON WOMEN IN THE WORKFORCE As of 2008, the United States workforce consisted of about 68 million women, or approximately 46.5% of the labor force.5 By 2016, women will likely comprise 47% of the labor force.6 Women’s presence in the labor force will likely continue to increase as the Baby Boomer generation, currently compose 40% of the labor force, retires.7

915 N.E.2d 622 (Ohio 2009).

WOMEN’S BUREAU, Quick Stats on Women Workers, 2008, http://www.dol.gov/wb/stats/main.htm (last visited Dec. 31, 2009). Even though women have an increasing presence in the workplace, employers may still view women as mothers or future mothers who will eventually leave. See SUSAN DOUGLAS & MEREDITH W. MICHAELS, THE MOMMY MYTH: THE IDEALIZATION OF MOTHERHOOD AND HOW IT HAS UNDERMINED ALL WOMEN 208 (2004) (noting that stories about women who opted out implied that “having a career and having small children were utterly incompatible” and that “if given a choice,” mothers with careers “would quit in a heartbeat”). 6 7

DOUGLAS & MICHAELS, supra note 4 at 208.

See BARBARA J. BERG, SEXISM IN AMERICA: ALIVE, WELL, AND RUINING OUR FUTURE 19091 (2009) (discussing workplace discrimination and gender bias and noting that the future “brain drain” in the workplace with the retirement of the Baby Boomer generation indicates a need to attract younger workers, both male and female, to prevent labor shortages and remain competitive in today’s global economy).

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Besides representing nearly half of the labor force, women’s contributions to their family’s income have increased from 26.6% in 1970 to 35.1% in 2005.8 Correspondingly, a decreasing share of households has only a single-breadwinning husband, compared to an increasing number of singlebreadwinning wives.9 With the rising cost of living, two-income households have risen from 18,888 in 1967 to 33,380 in 2005.10 Most (currently, 71%) of these working women have children, which is an increase from 47% in 1975.11 Working women whose children are often over the age of six12 or who are unmarried are more likely to be a part of the labor force.13 Given the high percentage of women in the workforce, employers cannot afford to have women with minor children leave the labor force.14 With the rising cost of living, neither can two-income household afford to lose women’s income. Further, the general public bears an interest in women’ continued employment; otherwise, the burden would likely shift to the government to provide benefits like Medicare and welfare to families in need. PART II: HISTORY OF PREGNANCY DISCRIMINATION

Bureau of Labor Statistics, Contribution of Wives’ Earnings to Family Income, 1970-2005 (2006), http://www.bls.gov/cps/wlf-table24-2007.pdf. 9

See Bureau of Labor Statistics, Married-Couple Families by Number and Relationship of Earners, 1967-2005, (2006), http://www.bls.gov/cps/wlf-table23-2007.pdf (showing that in 1967, 15,429 husbands were the family’s sole breadwinner while in 2005, only 10,603 husbands were the family’s sole breadwinner). 10

Id.

Bureau of Labor Statistics, Women in the Labor Force: A Databook (2009), http://www.bls.gov/cps/wlf-intro-2009.pdf. 12

Id.

Id. In 2008, 76% of unmarried women with children participated in the workforce compared to only 69% of married women with children. Id. 14

See BERG, supra note 6, at 190-91 (noting that the retirement of Baby Boomers could create a labor shortage and a brain drain in various fields).

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Although the statistics indicate that women have an increased presence in the work force, their involvement has gradually shifted over time. Colonial women worked in the home, and their work was critical to the family’s survival; over time, however, the nature of industries changed.15 During the industrial era, men’s work shifted from farming to industry, and families moved from the countryside to the city.16 Among families who could afford the lifestyle, women performed less housework and focused more on the “product” needed to fuel the industrial era: children.17 Society, as a result, began to perceive women as the family’s moral compass, rather than a contributor to the family’s survival.18 This shift in the nature of women’s work, unfortunately, did not correspond with an opposing shift in women’s societal status,19 as it was common, for example, for fathers to prefer male children.20 This societal perception persisted despite some pioneering women who bucked conventional trends by working.21 Society, however, deemed married working women as oddities.22 When World War II began, the government 15

GAIL COLLINS, WHEN EVERYTHING CHANGED: THE AMAZING JOURNEY OF AMERICAN WOMEN FROM 1960 TO PRESENT 4 (2009). 16

Id. at 4-5.

Id.

Id. at 5.

Id.

LORI D. GINZBERG, ELIZABETH CADY STANTON: AN AMERICAN LIFE 22 (2009) (noting that although his daughter’s abilities pleased him, Elizabeth Cady Stanton’s father still stated, “Ah, you should have been a boy!”). 21

CLIFT, supra note 1, at 15-16 (Susan B. Anthony was a schoolteacher); COLLINS, supra note 14, at 21-22, 25-26 (noting that one woman pursued a career in the law, and another woman pursued a career in advertising). Although those women discussed by Collins held non-traditional forms of employment, they still endured discrimination regarding their abilities. Id. 22

See COLLINS, supra note 14, at 99 (noting that middle class America’s benevolence to working women appeared to be limited to women who were young and single).

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recruited women to work in factories to inspect weapons and their quality, a crucial factor in the war effort.23 Many of these women worked jobs formerly reserved for men.24 After World War II ended, employers, as well as society in general, expected women to relinquish these jobs to returning soldiers and return to former traditional roles.25 Two factors, however, thwarted the complete re-domestication of American women: 1) women’s desire to participate in the labor force, and 2) the American industry’s high rate of exportation of consumer goods to the world.26 Nonetheless, women who remained in the workforce still faced difficulties. First, employers openly discriminated against women. A business with a job opening could place a newspaper ad that read: “Help wanted – Men” or “Help wanted – Women” without consequence.27 While teaching and nursing proved to be among the few professions open to

BERG, supra note 6, at 3 (noting that about six million women were recruited into World War II’s labor force); COLLINS, supra note 14, at 97-98. 24

COLLINS, supra note 14, at 99 (“Darling – you are now the husband of a career woman.”); see BERG, supra note 6, at 3 (stating that eighty percent of women in the labor force during World War II “wanted to stay on the job even after the men returned”). 25

BERG, supra note 6, at 3 (noting that most women in the aircraft, electric, and automotive industries lost their jobs after World War II ended and that many companies restored their policies of “refusing to hire married women”). 26

COLLINS, supra note 14, at 98-99 (noting that although Americans comprised only six percent of the global population, they produced about half of the world’s goods during the 1950s). 27

BERG, supra note 6, at 23. Even recourse through the Equal Employment Opportunities Commission (“EEOC”) was met with indifference in the 1960s. Id. The EEOC wanted to rid newspapers of racial discrimination but allowed gender discrimination to continue due to a desire to maintain the status quo. Id.

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women,28 these career limitations often arose from concerns about a woman’s health or concerns relating to pregnancy.29 When oral contraceptives became more readily available, the minimized fear of pregnancy allowed women to pursue other careers.30 However, schools, employers, and fellow employees still hindered women’s admission into male-dominated arenas,31 and women who succeeded in obtaining employment in male-dominated professions often found themselves relegated to positions “suitable” for women.32 Women working in “male-dominated” fields also faced discrimination in salary, as they did not enjoy the pay of their male counterparts,33 and some tried to seek relief through legal action with mixed results.34 The Obama administration addressed issues raised in the Supreme Court’s Ledbetter v.

COLLINS, supra note 14, at 102. Although access to a certain field is usually not the issue nowadays, lower salaries due to a high percentage of women are an issue. See BERG, supra note 6, at 201 (discussing that certain professions have become feminized which has caused these fields to have lower salaries from what they once paid like veterinarians). 29

COLLINS, supra note 14 at 102. For example, Lorena Weeks was denied a switchman’s job at Southern Bell based on a state rule that barred women from lifting over thirty pounds. Id. at 89-90. The job required her to use a piece of equipment that exceeded the state rule’s weight limit. Id. at 90. She later sued and won. Id. 30

Id. at 102.

FRED STREBEIGH, EQUAL: WOMEN RESHAPE AMERICAN LAW 36 (2009). Dean Erwin Griswold of Harvard Law School asked admitted female students, “What each was doing in law school, occupying a seat that could have been held by a man?” Id. 32

Id. at 152-58. Women who sought employment at law firms during the 1960s likely received hints to work in specialties like trusts and estates rather than litigation. Id. at 153, 157. 33 34

COLLINS, supra note 14, at 102.

See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 619 (2007), superseded by statute, Lilly Ledbetter Act of 2009, Pub. L. No. 111-2, 123 Stat. 5(2009)(determining that the statute of limitations for pay discrimination under Title VII had run on the plaintiff’s claims and she could not recover lost wages under that act).

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Goodyear Tire & Rubber Co. decision, including the statute of limitations issue under Title VII, through the Lilly Ledbetter Fair Pay Act of 2009.35 A.

Equal Protection

Among the unique challenges facing women that remain are the more subtle forms of pregnant discrimination. Women’s early courtroom victories tended to focus on general gender discrimination matters, rather than discrimination based on pregnancy.36 Pregnancy became a focus of reform when women decided to challenge the government’s and most employers’ policy of treating pregnancy as a voluntary condition not coverable for insurance or disability purposes.37 Several legal cases provide instruction on this trend. 1.

Geduldig v. Aiello38

In Geduldig, several women challenged the provision of California’s disability insurance system barring coverage of “certain disabilities resulting from pregnancy.”39 Although the district court held the provision

Pub. L. No. 111-2, 123 Stat. 5 (2009).

See Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (determining that the “differential treatment to male and female members of the uniformed services” only to achieve “administrative convenience violated the Fifth Amendment’s Due Process Clause because it required female service members to prove their husbands’ dependency). This case, however, only achieved a plurality regarding whether gender discrimination should be analyzed under the strict scrutiny standard. See STREBEIGH, supra note 30, at 57-61, 76. 37

STREBEIGH, supra note 30, at 82-83. Sally Armendariz’s car accident caused her miscarriage. Id. at 82. Her insurance program denied her request, and the appeals board also denied her claim. Id. The referee told her that “unlike most disabilities becoming pregnancy was voluntary” and under the law, he had no choice but to reject these claims. Id. at 83. 38

417 U.S. 484 (1974), superseded by statute, Pregnancy Discrimination Act of 1978, 92 Stat. 2076, as recognized in Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669 (1983). 39

Id. at 486.

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unconstitutional because it violated the Equal Protection Clause, the Supreme Court reversed.40 Citing a previous California Court of Appeals’ decision on insurance statutes, the Supreme Court designated three of the four cases as moot, and for the remaining plaintiff, framed the issue to be whether the program “invidiously discriminates . . . by not paying insurance benefits for disabilities” arising from pregnancy and childbirth.41 The Court determined that excluding normal pregnancies from disabilities did not amount to “invidious discrimination under the Equal Protection Clause” because California declined to insure all possible risks.42 The Court noted that the Equal Protection Clause did “not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.”43 Because no evidence existed that the program’s risk selection “discriminated against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program,” the remaining discrimination claim did not violate the Equal Protection Clause.44 The program categorized possible recipients as “pregnant women and nonpregnant persons,” so no discrimination occurred because the non-pregnant group included both sexes.45

Id. at 490. The district court found the insurance program to be irrational because it paid for a voluntary disability arising from plastic surgery but excluded an involuntary disability arising from a miscarriage after a car crash. STREBEIGH, supra note 30, at 94. 41

Id. at 490-92 (noting that the California case construing the statute was Rentzer v. Unemployment Ins. Appeal Bd., 32 Cal. App. 3d 604 (1973) and that the disabilities of three plaintiffs’ merited benefits under this case due to arising in abnormal pregnancies). 42

Id. at 494.

Id. at 495.

Id. at 496. “There is no risk for which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.” Id. at 496-97. 45

Id. at 497 n.20. In his dissent, Justice Brennan pointed out that the “dissimilar treatment of men and women, on the basis of physical characteristics inextricably linked to one sex, inevitably constitute[d] sex discrimination.” Id. at 501 (Brennan, J., dissenting). In response,

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Title VII

Title VII is the employment discrimination section of the Civil Rights Act. The original version did not address sex discrimination; rather, it focused its attention on discrimination “based on ‘race, color, religion, or national origin.’”46 Political maneuvering caused sex to be added to the bill, which was later enacted in 1964.47 1.

General Electric v. Gilbert48

The next major pregnancy discrimination case arose after Title VII’s enactment. In Gilbert, General Electric required its pregnant female employees to take a mandatory, uncompensated leave period before giving birth.49 The plaintiffs sought and were denied disability benefits for this time period and filed a Title VII claim with the EEOC.50 The district court found General Electric violated Title VII by excluding pregnancy disabilities, and the Fourth Circuit affirmed.51 Justice Stevens stated that the program “merely remove[d] one physical condition– pregnancy–from the list of compensable disabilities” Id. at 497 n.20 (majority opinion). 46

STREBEIGH, supra note 30, at 111-12.

Id. at 112-14. Representative Smith of Virginia, though he was an Equal Rights Amendment supporter, proposed the additional language in the hopes of killing the bill. Id. The language was included in the bill with a vote of 168 to 133. Id. The language’s supporters were a motley crew of politicians including women, Republican supporters of women’s rights, and Southern Democrats who wanted the bill to fail. Id. at 113. Many of these politicians then voted against the amended bill. Id. at 114. 48

429 U.S. 125 (1976), superseded by statute, Pregnancy Discrimination Act of 1978, 92 Stat. 2076, as recognized Shaw v. Delta Air Lines, 463 U.S. 85 (1983). 49

Id. at 128-29. After these women gave birth, they had to wait six weeks before they could return to their jobs. Id. at 150 n.1 (Brennan, J. dissenting). 50 51

Id. at 128-29 (majority opinion).

Id. at 130-31. The Fourth Circuit initially declined to decide General Electric’s appeal until after the Supreme Court made a decision on the Liberty Mutual case. STREBEIGH, supra note 30, at 123-24. The parties, however, petitioned the Supreme Court to hear the case and then the Fourth Circuit rendered a decision. STREBEIGH, supra note 30 at 124. The Fourth Circuit

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The Supreme Court, however, reversed. The Court noted that Congress had not incorporated prior discrimination concepts into Title VII and that the Court’s decisions were its best resource for interpreting Title VII.52 The Court thought that Title VII and the Equal Protection Clause were “not wholly dissimilar” in context, and applied Geduldig to the case at hand.53 Since “the concept of ‘discrimination’…was well known” when Title VII was enacted, the Court refused to infer more from Congress’s language and determined that General Electric’s disability benefits plan did not violate Title VII.54 Both Justices Stevens and Brennan dissented from the opinion. Justice Brennan believed that General Electric’s employment practices, the programs all-inclusive design, the role of working women, and “the EEOC’s construction of sex discrimination” was in line with Title VII’s goal “to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered [sexually] stratified job environments to the disadvantage of women.55 Justice Stevens believed Geduldig to be inapplicable, stating that the case at hand only involved a question of simple statutory construction.56 He concluded that General Electric’s rule discriminated based on sex and he would have affirmed the Fourth Circuit’s decision.57

did not follow Geduldig because it involved the Equal Protection Clause not Title VII. STREBEIGH, supra note 30 at 131. 52

Gilbert, 429 U.S. at 133.

Id. at 133, 137. The Court also examined the conflicting EEOC guidelines but they provided little guidance. Id. at 141-45. 54

Id. at 145-46.

Id. at 160 (Brennan, J., dissenting).

Id. at 161 (Stevens, J., dissenting).

Id. at 161-62.

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Title VII Amended: Pregnancy Discrimination Act

In response to the General Electric decision, Congress amended Title VII with the Pregnancy Discrimination Act (“PDA”), which states: The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise.58 The Act’s purpose was “to clarify Congress’ intent to include discrimination based on pregnancy, childbirth, or related medical conditions in the prohibition against sex discrimination and employment.”59 Congress clarified that the General Electric majority did not correctly interpret Title VII by denying pregnant women its protection.60 Indeed, this protection against discrimination would “extend[] to the whole range of matters concerning the child-bearing process,” for women who were “pregnant, bearing a child, or [had] a related medical condition.”61 Congress, however, neglected to define the “related medical conditions” included under the PDA. 1.

Newport News Shipbuilding & Dry Dock Co. v. EEOC62

In Newport News, the Supreme Court addressed an employer’s insurance plan, which covered male and female employees in the same manner except for when dealing with the issue of pregnancy, under the PDA. 58

92 Stat. 2076, 42 U.S.C. § 2000e(k).

H.R. Rep. No. 95-948, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4750.

Id.

Id. at 5, 1978 U.S.C.C.A.N. at 4753.

462 U.S. 669 (1983).

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Male employees’ pregnant spouses received less hospital coverage than pregnant female employees with spouses. A male employee sued, alleging that the plan was discriminatory, but the district court found the plan lawful.63 The Fourth Circuit reversed, finding that a disparity in coverage existed between male and female employees, which violated the PDA.64 Upon granting certiorari, the Supreme Court considered whether the PDA’s enactment overturned General Electric’s holding and test for discrimination.65 Examining the PDA’s legislative history and noting that many PDA proponents felt that the Supreme Court had incorrectly interpreted congressional intent, the Court analyzed the plaintiff’s claim against the backdrop “that Congress had always intended to protect all individuals from sex discrimination in employment — including but not limited to pregnant women workers.”66 Since the PDA made clear that discrimination based on pregnancy under Title VII is sex discrimination and “the sex of the spouse is always the opposite of the sex of the employee,” the Court concluded that discrimination against female spouses regarding fringe benefits would qualify as discrimination against male employees.67 As a result, the plan’s pregnancy limitation violated Title VII by discriminating against the company’s male employees.68 The dissent felt that the Court’s analysis deviated from the PDA’s plain language and legislative history applied to employees’ pregnancies rather than their spouses.69 The dissent reasoned that General Electric still 63

Id. at 674.

Id. at 675.

Id. at 676.

Id. at 678-79, 681.

Id. at 684.

Id.

Id. at 686-88 (Rehnquist, J., dissenting).

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applied because the PDA’s intent was to treat pregnant employees the same, and employees’ spouses were not within the congressional intent of the PDA.70 2.

Other Cases Construing the PDA

Despite the Newport News decision, courts often take a narrow view of the PDA when plaintiffs attempt to recover for discrimination arising out of their pregnancies. i.

Maldonado v. U.S. Bank71

In Maldonado v. U.S. Bank, a provisional, part-time bank teller, discharged after informing her boss about her pregnancy, sued her employer.72 The district court granted the employer summary judgment; however, the Seventh Circuit reversed.73 On appeal, the Seventh Circuit discussed the intent of Title VII and the PDA, noting that a prevailing party “must show that she was treated differently because of her pregnancy,” which could be done directly or indirectly.74 The employer did not dispute that it discharged the plaintiff because of her pregnancy, but asserted that it discharged the plaintiff due to an anticipated diminishment in her performance and anticipated unavailability due to her medical condition.75

Id. at 690-95.

186 F.3d 759 (7th Cir. 1999).

Id. at 761. The plaintiff interviewed for the part-time teller position on February 10th and learned that she was pregnant three days later. Id. at 764. The plaintiff began her training on February 20th, and as part of her training she received an employee manual that noted she was a provisional employee for the first three months of her job and that employers were eligible for pregnancy leave after one year of service. Id. While still in training, she informed her employer approximately two weeks later that she was pregnant and was subsequently discharged. Id. 73

Id. at 761-62.

Id. at 763 (quotation omitted).

Id. at 766.

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The Seventh Circuit reasoned that the PDA allowed women to make independent choices but the PDA “was not designed to handcuff employers by forcing them to wait until an employee’s pregnancy cause[d] a special economic disadvantage.”76 In other words, the PDA did not create an “artificial divide” between pregnancy and secondary effects affecting job performance. Thus, an employer could, in limited circumstances predict a pregnant employee’s disruptive extra needs, such as breaks and act proportionately to such projections if “it has a good faith basis supported by sufficiently strong evidence, that the normal inconveniences of an employee’s pregnancy will require special treatment.”77 The Seventh Circuit, while acknowledging that “an employer can dismiss an employee for excessive absenteeism, even if the absences were a direct result of the employee’s pregnancy[,]”noted that the employer had to offer proof of such.78 The employer in Maldonado did not present any such evidence.79 Based on the factual record, the Seventh Circuit concluded that summary judgment was inappropriate, noted that “[t]he PDA makes it unlawful for an employer to assume that pregnant women will be less productive than other employees,” and indicated the circumstances in which an employer may discharge an employee based on bona fide occupational qualifications if it has a good faith basis that is “supported by sufficiently strong evidence.”80 ii.

Krauel v. Iowa Methodist Medical Center81

In Krauel v. Iowa Methodist Medical Center, the plaintiff sued her employer under Title VII and the PDA for failing to cover her fertility

Id. at 767.

Id.

Id. at 767-68.

Id. at 767-69.

95 F.3d 674 (8th Cir. 1996).

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treatments in her medical benefits plan.82 The district court granted the employer summary judgment. On appeal, the Eighth Circuit found that the phrase “related medical conditions did not contemplate conditions beyond actual pregnancy and childbirth; additionally, the EEOC guidelines did not refer to infertility, which strengthened the Eighth Circuit’s reasoning.83 The court held that plaintiff’s infertility went beyond the PDA’s scope and affirmed the employer’s denial of coverage.84 iii.

Fleming v. Ayers & Associates85

Similarly, in Fleming v. Ayers & Associates, the Sixth Circuit considered whether “related conditions” extend to pregnancy complications suffered by the child.86 Plaintiff’s child was born prematurely and suffered from hydrocephalus, which resulted in an extended hospital stay for the child.87 After the plaintiff’s child was released from the hospital, the plaintiff obtained a job at a nursing home, which was later revoked upon the employer’s determination of the associated insurance costs.88 The district court denied her Title VII claims but determined that the employer had violated ERISA.89

Id. at 676.

Id. at 679-80.

Id. at 680. The court distinguished this case from the U.S. Supreme Court decision in Johnson Controls because potential pregnancy was sex related while infertility could affect both genders. Id. 85

948 F.2d 993 (6th Cir. 1991).

Id.

Id. at 995. Hydrocephalus causes accumulation of “cerebrospinal fluid within the brain resulting from developmental anomalies.” Id. at 995 n.1. 88 89

Id. at 995-96.

Id. at 996. The district court requested that the parties address sua sponte “the applicability of ERISA section 510, 29 U.S.C. § 1140, to this case.” Id. While the court was taking the matter under advisement, the plaintiff was allowed to amend her complaint and add an ERISA claim. Id. In its findings of fact and conclusions of law, the district court held that the

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The Sixth Circuit noted that the plaintiff failed to establish a link between her employer’s decision and her gender or pregnancy, as the PDA referred to pregnant women’s conditions, not their offspring’s,90 even if the latter was “present at birth.”91 The Sixth Circuit determined that (1) the PDA did not encompass adverse employment actions due to a child’s medical condition merely because that condition existed at birth and (2) the plaintiff’s failure to show that the employer’s decision was related to gender as a dependent’s medical expenses were not gender specific.92 iv.

Abraham v. Graphic Arts International Union93

In Abraham v. Graphic Arts International, the plaintiff informed her employer of her pregnancy and took maternity leave from her position as an administrative assistant.94 She received no definite answer regarding leave before giving birth.95 Upon her return, she learned of her termination.96 The EEOC issued her a right-to-sue letter, but the district court granted summary judgment in favor of her employer.97 The D.C. Circuit reversed, determining that the plaintiff had made out a prima facie case for trial.98 Additionally, the court noted that an employer employer violated ERISA because it had discriminated against the plaintiff “because of her expected use of employee benefits.” Id. 90

Id. at 996-97. The employer’s reasons for her treatment involved her performance and high insurance costs. Id. at 996. 91

Id.

660 F.2d 811 (D.C. Cir. 1981).

Id. at 813.

Id.

Id. at 813-14.

Id. at 815-16.

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may not consider the employee’s gender or rely on a unique characteristic (i.e. pregnancy) attributable to only one sex in the decision to discharge.99 Because neither the union’s leave policies nor the Department of Labor contract applied to the plaintiff, the court found that the policy conflicted with Title VII.100 The court viewed the leave policies as “portend[ing] a drastic effect on women employees of childbearing age an impact no male would ever encounter.”101 v.

In re Carnegie Center Associates102

The case regarding In re Carnegie Center Associates, involves a situation in which the plaintiff’s employers faltered financially during her maternity leave and eliminated her secretarial position.103 She sued, alleging discrimination on the basis of race, gender, and marital status; the district court, however, concluded that the company eliminated her position due to her absence and her lack of qualifications (rather than race, gender, pregnancy) and that she did not qualify for the other available positions.104 On appeal, the Third Circuit considered whether absence based on maternity leave qualifies as a legitimate nondiscriminatory reason for termination.105 The court citing a Seventh Circuit’s decision, ruled that the PDA requires an employer to ignore the pregnancy, but not the pregnancyrelated absence caused by the pregnancy unless it would also ignore that of other employees.106 The court ultimately concluded that the plaintiff’s 99

Id at 817.

100

Id. 818-19. The Department of Labor contract only allowed for ten days of vacation and ten days of leave. Id. 101

Id. at 819.

102

129 F.3d 290 (3d Cir. 1997).

103

Id.

104

Id. at 294.

105

Id.

106

Id. at 296 (construing Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994)).

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absence (along with the company’s economic woes) led to her termination.107 Most importantly, the court declined to find that discharges based on maternity leave absences were per se violations of the PDA.108 PART III: ALLEN V. TOTES/ISOTONER CORP. AND RELATED CASES A.

Ohio’s Statutory Context

The aforementioned line of cases provide context to one subsidiary issue to the described concerns facing working mothers — workplace breastfeeding policies. Partly due to the singularity of the issue, legal authority on the matter is sparse. Allen v. Totes/Isotoner Corp., the Ohio case that is the subject of this article, provides a reference for analyzing this matter. Ohio’s lone breastfeeding statute establishes mothers’ rights to breastfeed in public, but does not address an employee’s rights specifically.109 As a result, Allen brought her suit under Ohio’s version of the PDA.110 B.

Allen v. Totes/Isotoner Corp.

Plaintiff Allen was a temporary probationary employee of the Totes/Isotoner Corporation.111 Allen – mother of a then-five month old son – suffered from significant discomfort when unable to pump breast milk during work hours.112 Allen began taking unauthorized breaks and requested

107

Id.

108

Id. at 297.

109

OHIO REV. CODE ANN. § 3781.55. This statute allows mothers to breastfeed “in any location of a place of public accommodation wherein the mother otherwise is permitted.” Id.; see OHIO REV. CODE ANN. § 4112.01 (defining places of public accommodation). 110

See OHIO REV. CODE ANN. § 4112 et. seq. (discussing unlawful discrimination); OHIO ADMIN. CODE § 4112-5 et seq. (discussing discrimination); OHIO ADMIN. CODE § 4112-5-05 (discussing sex discrimination); Allen, 915 N.E.2d 622. 111

Allen, 915 N.E.2d 622 (Ohio 2009).

112

Id.

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accommodations.113 Her superior decided to terminate her.114 Allen sued under Ohio’s PDA, alleging that her employer discriminated against her based on her choice to breastfeed her child.115 The Court of Common Pleas granted summary judgment for the employer, finding that lactation discrimination is not pregnancy discrimination, did not violate state public policy, and did not constitute disability discrimination.116 The Ohio Court of Appeals affirmed.117 The Ohio Supreme Court also affirmed, citing Allen’s unauthorized breaks as the legitimate, nondiscriminatory reason for her termination.118 In affirming the Court of Appeals’ decision, the Ohio Supreme Court did not reach the issue of whether breastfeeding discrimination was contemplated by Ohio’s employment discrimination statute.119 Justice O’Connor of the Ohio Supreme Court concurred in judgment only. Justice O’Connor agreed that Allen had not developed a record that would survive summary judgment, but believed that the trial and appellate courts had “erroneously applied inapposite federal precedent” when analyzing Allen’s claims and that the court should clarify the law.121 Justice O’Connor argued that breastfeeding was within the employment discrimination statute’s scope and that the statute would therefore bar discrimination based on that action.122 The PDA, she maintained, made clear that pregnancy discrimination was sex discrimination and the employer must act neutrally 120

113

Id.

114

Id.

115

Id.

116

Id.

117

Id. at 624.

118

See id.

119

Id.

120

Id. (O’Connor, J., concurring in judgment only).

121

Id. at 625.

122

Id.

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toward a pregnant employee before, during, and after pregnancy.123 Justice O’Connor distinguished a Sixth Circuit case cited by the majority by noting that it involved discrimination based on public accommodation, not employment discrimination.124 Justice O’Conner declined to use other federal courts’ post-Gilbert rationales because Ohio’s legislative intent was to reject Gilbert.125 Justice O’Connor resolved that the trial court’s conclusion that lactation was related to breastfeeding as opposed to pregnancy was “curious and inaccurate.”126 Justice O’ Connor further suggested that the workplace rule on pumping breast milk may treat lactating women disparately by restricting them to pumping breast milk only at lunch, but not others who needed to tend to bodily functions.127 Nonetheless, Justice O’Connor affirmed the summary judgment ruling.128 Justice O’Connor agreed that Allen’s unauthorized breaks and the lack of evidence that the employer implicitly ratified other employees’ circumvention of the break rules.129 The dissent believed that the majority avoided clarifying whether the Ohio General Assembly intended to create a cause of action for discrimination based on the aftereffects of pregnancy.130 The dissent pointed to the lower court’s failure to explore the differences between Allen’s unauthorized breaks

123

Id. at 628.

124

Id. at 628-29.

125

Id. at 629.

126

Id. at 630.

127

Id.

128

Id. at 631.

129

Id. Justice O’Connor, however, refused to hold that pregnancy and lactation were disabilities because Allen had not shown how she was disabled. Id. at 631. Additionally, allowing her claim to proceed under a disability analysis would revive paternalistic attitudes towards women. Id. at 632. 130

Id. at 632 (Pfeifer, J., dissenting).

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and that of other employees or the number of the latter.131 The dissent would have held that lactation discrimination was employment discrimination and that Allen’s case should proceed to trial.132 C.

Other Cases

The Allen decision is consistent with other cases decided in the United States, as many courts have similarly concluded that the plaintiff either failed to make a prima facie case of discrimination or that Congress did not contemplate breastfeeding as protected from discrimination.133 1.

McNill v. New York City Dept. of Correction134

In McNill v. New York City Department of Correction, the plaintiff gave birth to a son who suffered from a cleft palate and lip.135 Although she was medically cleared to return to work after her maternity leave, she had missed work numerous times to breastfeed her son until his surgery.136 Her employer eventually reclassified her title, then demoted her.137 She sued, alleging that her employer’s actions were discriminatory and related to her breastfeeding.138

131 132

Id. Id. at 633.

133

See Stanley v. Abacus Tech. Corp., 359 Fed. App’x 926 (10th Cir. 2010); Barrash v. Bowen, 846 F.2d 927 (4th Cir. 1988); Dike v. Sch. Bd. of Orange Cnty., Fla., 650 F.2d 783 (5th Cir. Unit B July 1981), overruled by Shahar v. Bowers, 114 F.3d 1097 (1997); Martinez v. N.B.C., Inc., 49 F. Supp. 2d 305 (S.D.N.Y. 1999); Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487 (D. Colo. 1997); McNill v. N.Y.C. Dept. of Corr., 950 F. Supp. 564 (S.D.N.Y. 1996). 134

McNill, 950 F. Supp. 564 (S.D.N.Y. 1996).

135

Id. at 566.

136

Id. at 566-67.

137

Id. at 567.

138

Id. at 568.

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The district court considered whether breastfeeding fell within the meaning of “pregnancy, childbirth, or [a] related medical condition.”139 The district court, construing the PDA,140 defined the act of giving birth and pregnancy as the time in which a fetus is gestating in the uterus.141 The district court concluded, based on this definition that an infant’s cleft palate and lip was not a condition related to pregnancy or childbirth.142 Delving into the Act’s legislative history, the court reasoned that the related medical condition must afflict the mother, not the child, and a cleft palate and lip do not directly affect the mother.143 Though the plaintiff’s situation was particularly sympathetic, the district court concluded that she was not part of the protected class and did not allege a prima facie case for discrimination under Title VII.144 2.

Martinez v. N.B.C., Inc.145

In Martinez v. N.B.C., Inc., the plaintiff worked in production at MSNBC.146 Upon returning from her maternity leave, she chose to use a breast pump to collect her breast milk when she could not nurse.147 She obtained her employer’s permission to use her breast pump three times a day for about twenty minutes per session.148 After a few months, this particular

139

Id. at 569 (internal quotation marks omitted).

140

Id.

141

Id.

142

Id. at 569-70.

143

Id. at 570.

144

Id. at 571.

145

Martinez, 49 F.Supp.2d 305 (S.D.N.Y. 1999).

146

Id. at 307.

147

Id.

148

Id.

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schedule grew more burdensome, and she sought a more regular schedule.149 The employer, however, demoted the plaintiff when she could not work the hours required as a producer.150 The plaintiff filed for and received a right-to-sue letter from the EEOC to allege that MSNBC had, under the American with Disabilities Act (“ADA”), failed to provided her adequate accommodations to pump her breast milk and, under Title VII, had engaged in retaliatory conduct by demoting her, among other claims.151 The Southern District of New York dismissed her ADA claim because “pregnancy and related medical conditions do not, absent unusual conditions, constitute a [disability] under the ADA” and noted that one judge in the Second Circuit stated that, “it is simply preposterous to contend a woman’s body is functioning abnormally because she is lactating.”152 The court further concluded that under Title VII, breast-pumping individuals did not merit a protected status; thus, the plaintiff failed to state a prima facie claim of gender discrimination.153 The court also concluded that the plaintiff was not suffering a hostile work environment due to her breast pumping because “there were and could be no men with the same characteristic,” which meant that, at most, it was a “work environment hostile to breast pumping, not a work environment that subjected women to treatment less favorable than was meted out to men.”154 The court found that her retaliation claim failed because Title VII did not cover acceptable breast pumping facilities and dismissed her complaint.155

149

Id.

150

Id.

151

Id. at 308.

152

Id. at 309 (quoting Bond v. Sterling, Inc., 997 F.Supp. 306, 311 (N.D.N.Y. 1998) (McAvoy, C.J.)). 153

Id. at 311.

154

Id.

155

Id.

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Fejes v. Gilpin Ventures, Inc.156

Fejes v. Gilpin Ventures, Inc.157 presented a similar outcome. The plaintiff, a blackjack dealer, took FMLA leave, which was scheduled to end in June 1994.158 The plaintiff, however, could not return by the scheduled date because she had not set “an appropriate breast-feeding schedule.”159 A month after her scheduled return, the defendant fired her.160 The plaintiff filed gender and discrimination claims with the EEOC and received a right-to-sue letter.161 The District of Colorado Court granted summary judgment on the plaintiff’s Title VII claim. The court, handling the case on first impression, determined after looking at the act’s language, the act’s legislative history, and other courts’ decisions, that neither childrearing nor breast-feeding are within the PDA’s scope.162 The court surmised that the PDA’s legislative history did not mandate that an employer provide benefits or accommodations for breastfeeding to be paid if the condition was not medically related to pregnancy.163 Additionally, the court noted that the plaintiff failed to establish that other similarly situated employees received different treatment.164 The court stated that she also failed to establish a prima facie case of gender discrimination because she submitted no evidence that better conditions were 156

Fejes, 960 F.Supp. 1487 (D. Colo. 1997).

157

Id. at 1489.

158

Id. at 1490.

159

Id.

160

Id.

161

Id. at 1491.

162

Id.

163

Id. at 1492.

164

Id.

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provided to male employees who took medical leave.165 The court, however, allowed the plaintiff to proceed with her FMLA and breach of contract claims, because she provided specific facts to show that genuine issues of material fact existed.166 4.

Stanley v. Abacus Technology Corp.167

In Stanley v. Abacus Technology Corp., the plaintiff worked for her employer as a photographer.168 She gave birth, returned to work, and was terminated four months after her return.169 She received a right-to-sue letter from the EEOC and sued based on pregnancy and gender discrimination.170 The district court granted summary judgment for the employer.171 At the Tenth Circuit, the plaintiff contended that her employer denied her the ability to modify her schedule during her pregnancy or breastfeeding period and gave her a lower performance appraisal during her pregnancy.172 The Tenth Circuit determined that she had not established an adverse employment action or that she was treated differently from other employees in similar situations.173 The plaintiff never requested an accommodation to breastfeed her child during her lunch hour and could not remember a time 165

Id. at 1492-94.

166

Id. at 1494-97.

167

Stanley, 359 Fed. App’x 926 (10th Cir. 2010).

168

Id. at 926.

169

Id. at 927.

170

Id.

171

Id.

172

Id. at 928.

173

Id. at 928-29. Because the plaintiff did not present any direct evidence of discrimination, the Tenth Circuit was required to examine her case through the indirect approach using the burden-shifting framework of McDonnell-Douglas. Id. at 928. As a result, the plaintiff had to establish a prima facie case of discrimination with the following factors: “(1) she [was] a member of a protected class; (2) she suffered an adverse employment action; and (3) she was treated differently from similarly situated employees.” Id.

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when her employer refused to reschedule a lunchtime assignment.174 Further, other co-workers did not have duty-free lunch hours either.175 The Tenth Circuit also found her retaliation claim baseless, as she had received a marginal rating in her performance and had received verbal warnings about her violations.176 Additionally, the plaintiff failed to explain how the district court erred in its analysis.177 Ultimately, the Tenth Circuit determined that there was no reversible error in granting summary judgment on the gender discrimination claim because the plaintiff did not present evidence of different treatment of similarly situated co-workers, which is necessary to establish a prima facie case for such claims.178 Thus, the Tenth Circuit affirmed the district courtâ&#x20AC;&#x2122;s judgment.179 5.

Dike v. School Board of Orange County, Florida180

Dike v. School Board of Orange County, Florida181 presented a deviation from the previous line of cases. The plaintiff was a kindergarten teacher who breastfed her newborn, arranging for her spouse or her babysitter to bring the newborn to school during her breaks and lunch periods to nurse.182 She breastfed the newborn in a locked room where others could not see and she performed all of the duties asked of her by the school.183 Citing a school board directive disallowing teachers from bringing their children to 174

Id. at 928.

175

Id. at 929.

176

Id. at 929-31.

177

Id. at 930-31.

178

Id. at 931.

179

Id.

180

Dike, 650 F.2d 783 (5th Cir. Unit B July 1981).

181

Id. at 784.

182

Id. at 784-85.

183

Id.

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work for “any reason,” the principal asked her to stop nursing her newborn on school grounds.184 The plaintiff complied and began using a breast pump to accommodate her child’s allergy to formula milk.185 However, the change in routine affected the plaintiff and newborn, so the plaintiff requested to either be allowed to resume her old routine or be allowed to nurse the child off campus when she was not on duty.186 This request was denied.187 The plaintiff was later forced to take a leave of absence when her newborn refused to nurse from the bottle.188 She sued, however, the district court denied her request for a preliminary injunction and dismissed her complaint.189 The Fifth Circuit, determining that the request for a preliminary injunction was moot because the plaintiff had already begun to wean the child, addressed only the issue of back pay.190 The Fifth Circuit reversed the dismissal of the plaintiff’s complaint, deciding that the district court needed additional facts to weigh the plaintiff’s interests against those of the school board.191 The Fifth Circuit described breastfeeding as “the most elemental form of parental care” and a “communion between mother and child that, like marriage, is ‘intimate to the degree of being sacred.’”192 The court concluded that the Constitution protects a woman’s decision to breastfeed, like other personal family and marriage decisions, from excessive state interference.193 The court, however, also acknowledged that the school board had an interest in preventing disruption of the educational process, ensuring teachers perform 184

Id.

185

Id.

186

Id.

187

Id.

188

Id.

189

Id.

190

Id.

191

Id.

192

Id. at 787; see also Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

193

Dike, 650 F.2d at 787.

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their duties, and avoiding potential liability.194 The Fifth Circuit remanded the case to the district court to determine whether the school board’s interests merited regulation and were narrowly drawn.195 6.

Barrash v. Bowen196

In Barrash v. Bowen, the plaintiff worked for the Social Security Administration and sought six months of maternity leave after the birth of her second child so she could breastfeed.197 Initially, she only received six weeks of maternity leave, but she was granted more time after receiving notes from her doctor.198 Her employer, however, requested that she return to work, and if she did not return to work, she needed to provide adequate documentation for illness or would be considered absent without leave.199 After repeated instructions to return to work and denials of requests for more time, the employer terminated the plaintiff.200 The review board determined that the discharge was valid, yet the district court concluded that the policy violated Title VII and awarded her relief.201 The Fourth Circuit, however, concluded that the review board’s determination was appropriate.202 After examining the plaintiff’s Title VII claim, the Fourth Circuit noted that disparate impact analysis was inappropriate because the grant or withdrawal of the leave was discretionary

194

Id.

195

Id.

196

846 F.2d 927 (4th Cir. 1988).

197

Id. at 928.

198

Id.

199

Id.

200

Id. at 929.

201

Id.

202

Id. at 930.

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despite the involvement of a new mother.203 The Fourth Circuit noted that the number of women receiving six months of maternity leave was decreasing over the years, and that comparing the women and menâ&#x20AC;&#x2122;s leave was not possible because the men were incapacitated and the women were not.204 The Fourth Circuit determined that any disparate impact regarding the leave policy was not of the kind that would invalidate the policy, because it did not show that women received less favorable treatment than men.205 The court then noted that the unpaid leave of absence policy concerned the excessiveness of the leave and disparate impact could not be shown by information that was unaffected by the directive.206 The Fourth Circuit reversed the judgment of the district court.207 PART IV: SURVEY OF STATE AND FEDERAL LAWS Women have certainly made strides since the enactment of the Nineteenth Amendment, but opportunities for further progress remain. Allen and the other similar cases mentioned demonstrate how perceptions of women, pregnancy, and the workplace from the days of General Electric and Geduldig persist in some form. A.

Breastfeeding Statutes

Twenty-four states, the District of Columbia, and Puerto Rico have addressed breastfeeding and the workplace.208 Though these statutes vary in 203

Id. at 931.

204

Id. at 931-32.

205

Id. at 932.

206

Id.

207

Id.

208

Breastfeeding Laws, NATâ&#x20AC;&#x2122;L CONFERENCE OF STATE LEGISLATURES, http://www.ncls.org/issues-research/health/breastfeeding-state-laws.aspx (last visited July 28, 2010). The states that have addressed breastfeeding and the workplace are as follows: Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming. Id.

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their accommodation of breastfeeding women, they tend to fall into two categories: (1) allowing employees to take unpaid breaks to express breast milk that run concurrently with those breaks already provided by the employer or (2) allowing employees to express breast milk during meal or break periods.209 Most statutes do not require employers to provide these break if doing so would unduly disrupt their operation.210 As such, even if Ohio enacted a statute similar to those in other states, the Allen court likely would have reached the same result due to the plaintiff taking unauthorized breaks.211 Most of these statutes indicate that breastfeeding should occur during breaks or concurrent with breaks.212 Ohio could, however, model its laws after states that are more accommodating to breastfeeding in the workplace. Colorado requires Forty-five states (including Ohio), the District of Columbia, and the Virgin Islands allow breastfeeding in any public or private location. See id. (listing states). Other states exempt breastfeeding from public indecency laws, exempt breastfeeding women from jury duty, or create a public awareness campaign on breastfeeding. See id. (listing states). 209

Compare ARK. CODE ANN. § 11-5-116(a) (2009) (providing employees with “reasonable unpaid break time” to express breast milk, which should run concurrently with any paid or unpaid breaks already provided); CA. LAB. CODE § 1030 (same); GA. CODE ANN. § 34-1-6(b) (2008) (same) 820 ILL. COMP. STAT. ANN. 260/10 (same); MINN. STAT. ANN. § 181.939 (same); OKLA. STAT. ANN. tit. 40, § 435 (2008) (same); TENN. CODE ANN. § 50-1-305(b) (2008) (same) with CONN. GEN. STAT. ANN. § 31-40w(a) (2008) (allowing breastfeeding on meal or break periods); IND. CODE ANN.§ 5-10-6-2 (requiring state and its political subdivisions to provide paid breaks for employees to express breast milk which should run concurrently with the employee’s already provided breaks); and MISS. CODE ANN. § 71-1-55 (2008) (barring employers from preventing employees from breastfeeding during provided meal or break periods). 210

See GA. CODE ANN. § 34-1-6(b) (allowing employers to provide no breaks if the breaks would unduly disrupt operations); OKLA. STAT. ANN. tit. 40, § 435 (same); and TENN. CODE ANN. § 50-1-305(b) (2008) (same). 211

ARK. CODE. ANN. § 11-5-116(a) (2009) (providing employees with “reasonable unpaid break time” to express breast milk which should run concurrently with any paid or unpaid breaks already provided); CONN. GEN. STAT. ANN. § 31-40w(a) (2008) (allowing breastfeeding on meal or break periods). 212

Id.

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employers to provide reasonable unpaid break time or allow the employee to use paid break or meal periods to express breast milk for up to two years after the child’s birth.213 Oregon requires employers to provide breastfeeding employees with a half-hour break for every four-hour shift, unless a different agreement is reached.214 If an employer wants to promote itself as infant- or mother-friendly in North Dakota, Texas, or Washington, it must comply with certain standards of workplace flexibility by scheduling breaks and patterns for expressions of milk, private areas to pump, areas to clean pumping machines, and storage areas for the milk.215 These accommodations need not coincide with established breaks. Most of these accommodations, however, are voluntary for employers; only Oregon has mandated that employees receive half-hour breaks for every four hours worked.216 Although voluntary, these arrangements show that some states value their female citizens ability to be both employees and mothers. The aforementioned examples of state legislation indicate that some states are trying to promote workplace equality. One way to resolve these differing standards among the states is to amend the PDA. In 2005, Representative Maloney of New York introduced a bill to amend the PDA and meet the needs of women with infants, a growing segment of the labor force, to reflect the recommendations of the American Academy of Pediatrics to breastfeed for the first six months of an infant’s life. 217 In addition, the bill 213

COLO. REV. STAT. ANN. § 8-13.5-104(1) (2008); see ME. REV. STAT. ANN. tit. 26, § 604 (2009) (requiring employers to provide reasonable unpaid breaks or allow the employee to use paid breaks for up to three years after the child’s birth); N.Y. LAB. LAW § 206-C (2007) (same). 214

OR. REV. STAT. ANN. § 653.077(1)(c) (2008).

215

See S.B. 2344, 61st Leg., Reg. Sess. (N.D. 2009) (listing requirements to be designated an infant-friendly employer); TEX. HEALTH & SAFETY CODE ANN. § 165.003(a) (2008) (listing requirements to be designated a mother-friendly employer); WASH. REV. CODE ANN. § 43.70.640(1) (2008) (listing requirements to be designated as an infant-friendly employer). 216

OR. REV. STAT. ANN. § 653.077(1)(c) (2008)(noting that failure to comply can result in a thousand dollar penalty). 217

Pregnancy Discrimination Act Amendments of 2005, H.R. 2122, 109th Cong. § 102(a)(1),(3) (2005).

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asserted that courts’ exclusion of breastfeeding from the meaning of the PDA was inconsistent with congressional intent.218 The bill, if it had been enacted, would have given employers tax credits for providing dedicated areas for breastfeeding.219 This bill, however, failed to pass that year220 or during the 110th221 or during the 111th Congress. 222 Congress, however, has made progress with the passage of Patient Protection and Affordable Care Act of 2010 (“PPACA”). Section 4207 of the PPACA requires employers to provide a clean and private area and unpaid breaks for mothers to express breast milk.223 Although the act applies only to

218

See id. § 102 (a)(8)-(9).

219

Id. §§ 201, 451.

220

The bill was referred to a House subcommittee on Employer-Employee Relations in May 2005. http://thomas.loc.gov/cgibin/bdquery/d?d109,d109:100:./temp/~bdDOeQ:[[o]]&items=100&|/bss/d109query.html| (last visited on Feb. 8, 2010); see http://www.govtrack.us/congress/bill.xpd?bill=h1092122&tab=committees (last visited on Feb. 8, 2010) (showing the various committees that the bill had been referred to including House Ways and Means, Energy and Commerce, Energy and Commerce subcommittee on Health, House Education and Workforce, and the Employer Employee Relations subcommittee). Since the bill was not passed and occurred in a previous congressional session, the bill was cleared from the books and would need to be reintroduced. http://www.govtrack.us/congress/bill.xpd?bill=h109-2122 (last visited on Feb. 8, 2010). 221

http://maloney.house.gov/index.php?option=com_content&task=view&id=1337&Itemid =61 (last visited on Feb. 8, 2010). The bill was reintroduced on May 9, 2007. http://thomas.loc.gov/cgi-bin/thomas (last visited on Feb. 8, 2010). The bill was referred to another House subcommittee on Health, Employment, Labor, and Pensions. http://thomas.loc.gov/cgi-bin/thomas. It was not enacted and would have to again be reintroduced. http://www.govtrack.us/congress/bill.xpd?bill=h110-2236 (last visited on Feb. 8, 2010). 222

http://thomas.loc.gov/cgibin/bdquery/D?d111:1:./temp/~bdjeRG:@@@X|/bss/d111query.html (last visited on Feb. 8, 2010). The bill was referred to the House Ways and Means Committee, the Energy and Commerce Committee, and the House Education and Labor Committee. 223

Pub. L. No. 111-148, 124 Stat. 119, § 4207 (2010). This section amends § seven of the Fair Labor Standards Act of 1938. See 29 U.S.C. § 207 (2010).

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“a fraction of U.S. workers,”224 it provides coverage to working mothers in the states who have not addressed breastfeeding in the workplace.225 Additionally, the section does not preempt a state’s coverage if the state provides greater protection than the federal law.226 Although the PPACA represents progress for working mothers, the act has just survived several constitutionality challenges and still must face questions and issues arising with implementation.227 B.

The “Mommy Wars”

In addition to limited statutory protection, media and society have contributed to discrimination against working mothers through the “mommy wars”228 by speculating as to whether women could have it all.229 Despite women balancing work and family, the media has spotlighted a recent trend of

224

United States Breastfeeding Committee, Workplace Accommodations to Support and Protect Breastfeeding, 9-10, available at http://www.usbreastfeeding.org/Portals/0/Publications/Workplace-Background-2010USBC.pdf. Thus, employers with less than fifty employees are not subject to the law if the requirements would “impose an undue hardship by causing the employer significant difficulty and expense” in relation to the employer’s business. Pub. L. No. 111-148, 124 Stat. 119, § 4207(r)(3). 225

Pub. L. No. 111-148, 124 Stat. 119, § 4207.

226

Id. § 4207(r)(4).

227

Lyle Denniston, Don’t Call It a Mandate – It’s a Tax, SCOTUSblog http://www.scotusblog.com/?p=147879(last visited on Dec. 27, 2012); see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (U.S. 2012). 228 229

DOUGLAS & MICHAELS, supra note 4, at 204.

LESLIE BENNETTS, THE FEMININE MISTAKE: ARE WE GIVING UP TOO MUCH 149 (2007) (stating that media coverage “focuse[s] obsessively on the logistical challenges of [juggling work and motherhood without] exploring the rewards”); see also id. at 33, 180-81.

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women “opting out” of their careers to be stay-at-home mothers.230 This dynamic likely shapes employers’ perception of working mothers,231 which may result in a “mommy tax” (i.e. depressed earnings over the life of the working mother’s career).232 Thus, working mothers often earn less than women without children, and if a woman postpones having children until later in life, her earnings will be greater over her lifetime.233 A woman who chooses to or must keep working may face some economic penalty and will struggle to find affordable high-quality child care. Unlike several European countries, the United States does not supplement the costs of child rearing.234 Among women who need daycare, two-thirds receive some form of care from relatives, friends, or neighbors while others

230

Id. at 33, 180-81. This trend, however, is often available only to those families who are economically able to have one parent at home. See id. at 36 (“To the extent that there are women who are opting out, they are married to men earning over [$200,000] a year and working [90] hours a week. High-income men are married to their jobs, not their families, and that’s who these women who are being written about are married to.”). 231

DOUGLAS & MICHAELS, supra note 4, at 208 (noting that this tension “perpetuated the stereotype that child rearing was strictly a woman’s responsibility” and that it suggested “that deep in their hearts, mothers with careers were finding it all too stressful and, if given a choice, would quit in a heartbeat.”). 232

ANN CRITTENDEN, THE PRICE OF MOTHERHOOD: WHY THE MOST IMPORTANT JOB IN THE WORLD IS STILL THE LEAST VALUED 87-88. Even though this penalty affects both genders, the penalty disproportionably affects women as they are often the primary caretakers. Id. at 99 (noting that men who share domestic responsibilities also suffer an economic penalty as they earn 20% less than men who share no domestic responsibilities). 233

Id. at 94, 103. Overall, the pay gap has been reduced between the sexes, but this reduction appears only to apply to a discrete group. See id. at 87 (noting that women make ninety-eight cents to a man’s dollar but this figure only applied to the group of women between the ages of twenty-seven and thirty-three with no children). If all working women are compared to men, then they earn about 59% of men’s wages. Id. at 93. 234

Id. at 104. France provides about $10,000 in subsidies to families with two preschool age children. Id. Additionally, Swedish women receive a year’s paid leave after they have given birth, as well as a government stipend for child care expenses and a right to a six-hour work day with full benefits until their child attends elementary school. Id. at 108.

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use daycare centers,235 as past attempts to provide national child care have failed.236 Thus, these competing concerns motivate some women with means and opportunity to stay at home.237 Women who “opt-out” must consider the risk of becoming economically dependent on their significant others238 or the scarcity of positions if and when they return to the workforce.239 Such considerations may subconsciously affect courts addressing PDA cases. Although Allen did not have to reach the breastfeeding issue because Allen took unauthorized breaks, the court’s opinion indicates that courts still have a narrow view of pregnancy and the workplace. If a female employee had morning sickness and took unauthorized bathroom breaks, would she be terminated? Although impossible to predict, this example demonstrates the subtlety necessary to address the needs of lactating employees. The difference in treatment of pregnant women and new mothers also presents an issue. An employer that terminated an employee suffering from morning sickness would likely be sued for violating the PDA.240 Legislative 235

Id. at 243.

236

See id. at 244-45. The United States almost enacted a Comprehensive Child Development Act in the 1970s, which would have provided child care to all children, but it was vetoed. Id. Attempts to reintroduce and enact this bill have failed. Id. at 346-49. Then in the 1980s, the federal government reduced funding for children by 18%. Id. at 249. 237

BENNETTS, supra note 219, at 36.

238

See id. at 47 (noting that few women considered the loss of their income and dependency on their spouse or partner in reaching their decision to opt-out). 239

See id. at 77 (noting that two-thirds of women who opt-out to raise children and want to re-enter the working world find the situation very difficult). Only 74% of those seeking involvement in the professional world rejoin it. However, only 40% have a full time professional job while 24% have a part time job and 9% are self employed. Id. at 78. Women with “elite credentials” often have the most difficult time returning to the workplace, and even if they return, they will suffer a loss of earning power. See id. at 78-79 (noting that women lose about 18% of their earning power by opting out and with three or more years, they can lose up to 37% of their earning powers). 240

See 42 U.S.C. § 2000e(k) (stating that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of

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history has not clarified why breastfeeding lacks the PDA’s protection though; like morning sickness, lactation arises from a hormone produced “in response to the birth of a new baby.”241 According to the definition, lactation (and as a result, breastfeeding) should be a “related medical condition” to pregnancy because it stems from the pregnancy and is triggered by childbirth. However, as previously demonstrated above, courts disagree with this analysis. This divergence indicates that women in different stages of life have different levels of protections in the workplace. This subtle divergence may cause women to worry about their choices between breastfeeding and using formula. The American Academy of Pediatrics encourages breastfeeding for the first six months,242 and opting for the latter may create several hurdles.243 Thus, in making this decision, women must consider their workplace. Does the office have a breastfeeding policy? Will they have to seek permission to breastfeed from their employer? Do they benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise.”); see also MEDTERM.COM, http://www.medterms.com/script/main/art.asp?articlekey=13406 (defining morning sickness as “nausea and vomiting of pregnancy,” which “is a normal characteristic of early pregnancy”) (last visited Oct. 22, 2012). 241

MEDTERM.COM, http://www.medterms.com/script/main/art.asp?articlekey=6202 (defining lactation) (last visited Oct. 22, 2012). 242

American Academy of Pediatrics, AAP Reaffirms Breastfeeding Guidelines, (Feb. 27, 2012), available at http://www.aap.org/en-us/about-the-aap/aap-press-room/pages/AAPReaffirms-Breastfeeding-Guidelines.aspx?nfstatus=401&nftoken=00000000-0000-00000000-000000000000&nfstatusdescription=ERROR%3a+No+local+token. 243

Roni Rabin, Breast-Feed Or Else, N.Y. TIMES, June 13, 2006, available at http://query.nytimes.com/gst/fullpage.html?res=9802E1DC1331F930A25755C0A9609C8B6 3&pagewanted=1 (noting that a U.S. Senator has proposed placing warning labels on infant formulas and feedings of guilt by mothers who could not breastfeed their children); Jennifer Zajfe, Formula, for Disaster, N.Y. TIMES, May 13, 2007, available at http://www.nytimes.com/2007/05/13/opinion/nyregionopinions/13CIzajfe.html (noting that hospitals in some states have stopped providing formula samples in order to promote breastfeeding and arguing that hospitals and government should allow mothers to make the decision regarding how their child receives sustenance).

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risk taking unauthorized breaks and face possible termination? These and other complications, may cause women to determine that opting out of the workplace during the initial years of their child’s life is the path of least resistance especially if they have the financial means to do so.244 By opting out, these situations and issues will remain unaddressed and future generations will face the same issues. Furthermore, legislation addressing breastfeeding and the workplace shows some progress. With the PPACA surviving its constitutionality challenges, it will provide a minimum baseline; however, it will now face forthcoming questions of implementation for reliability.245 To ensure that all women receive protection, states should model any future legislation after Oregon’s laws related to breastfeeding and the workplace. In addition, employers should consider implementing a policy to counter future litigation as well as for their own bottom line. CONCLUSION Women still struggle for equality. Women have the right to vote, hold jobs that were once exclusively reserved for men, and have more choices than in previous decades. However, women still face obstacles in the workplace from salary disparity246 to pregnancy discrimination.247 Moreover, breastfeeding is still not protected under the PDA.

244

Lisa Belkin, The Opt-Out Revolution, N.Y. TIMES, Oct. 26, 2003 available at http://www.nytimes.com/2003/10/26/magazine/26WOMEN.html?pagewanted=all (noting many professional women are opting out of the workforce to take care of children). 245

See Sebelius, 132 S. Ct. 2566 (U.S. 2012); see also David M. Herszenhorn & Robert Pear, House Votes for Repeal of Health Law in Symbolic Act, N.Y. TIMES, Jan. 19, 2011 available at http://www.nytimes.com/2011/01/20/health/policy/20cong.html?_r=1&hp (stating that the House of Representatives supported the repeal with a vote of 245 to 189 and that “Leaders of the Democratic-controlled Senate have said that they will not act on the repeal measure, effectively scuttling it”). 246

Jennifer Ludden, Despite New Law, Gender Salary Gap Persists, NAT’L. PUB. RADIO, Apr. 19, 2010, available at http://www.npr.org/templates/story/story.php?storyId=125998232 (discussing gender salary gap and possible legislation to resolve pay inequity).

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Women are often viewed as mothers and wives first, before considering what other valuable and important roles they can fulfill. However, most women likely want to be perceived as more than just a wife or mother. They want to be perceived in their totality not just in their separate and various roles. Like the suffragists before them, women must raise these issues with their elected officials, courts, employers, and spouses or significant others to raise awareness and promote change, so they can spur their state legislatures into drafting legislation to improve their situations. If they find that their elected official cannot or does not support their cause, they can exercise the right to vote in support of rights and officials that will assist in creating a more fair environment and provide for more choices in that environment, including but not limited to the choice to breastfeed (or not) in the workplace.

247

Julie Manning Magid, Pregnant with Possibility: Reexamining the PDA, 38 AM. BUS. L.J. 819, 821 (stating that complaints rose by six percent between 1997-99). The number of receipts filed for pregnancy discrimination decreased from 2008 to 2009. U.S. Equal Empâ&#x20AC;&#x2122;t Opportunity Commâ&#x20AC;&#x2122;n, Pregnancy Discrimination Charges, www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm (last visited Oct. 22, 2012). In 2008, 6,285 receipts were filed while in 2009, only 6196 receipts were filed. Id. This decline could be due to less discrimination or it could be a result of the worsening economy and employee layoffs.

CONDORCET DEFEATED: A MALTHUSIAN HISTORY OF AFFIRMATIVE ACTION IN EDUCATION FROM BAKKE TO FISHER1 William J. Bogard TABLE OF CONTENTS I.

PREFACE ................................................................................................240

II. INTRODUCTION ......................................................................................241 III. THE EVOLUTION OF AFFIRMATIVE ACTION .........................................244 A. Origins: The Roosevelt Era .......................................................244 B. Expansion: The Johnson Era .....................................................245 C. Interpretation: The Landmark Education Cases ........................247 1. Regents of the University of California v. Bakke .................248 2. The University of Michigan Cases ......................................251 a. Gratz v. Bollinger ...........................................................251 b. Grutter v. Bollinger ........................................................254 3. Parents Involved in Community Schools v. Seattle School District No. 1.......................................................................257 IV. CONSTITUTIONAL STANDARDS FOR AFFIRMATIVE ACTION IN EDUCATION PROGRAMS ........................................................................263 V. THE CONTINUUM: FISHER V. UNIVERSITY OF TEXAS AT AUSTIN ..........264 A. Texas’ Admissions Program ......................................................265 B. The District Court’s Decision ...................................................267 1

The title is a reference to two famous Age of Enlightenment intellectuals: Marquis de Condorcet (1743–94) and Thomas Malthus (1766–1834). Condorcet’s seminal work, Idea of Progress, formed a fundamental piece of Enlightenment thought, and in it he viewed society as perfectible, at least in principle. See Jean-Antione-Nicolas de Caritat Condorcet, OUTLINES OF AN HISTORICAL VIEW OF THE PROGRESS OF THE HUMAN MIND (1796). Contrarily, Malthus

238

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C. Constitutional: The Fifth Circuit’s Affirmation ........................268 D. Unconstitutional: The En Banc Dissent ....................................271 VI. PREDICTING THE OUTCOME ..................................................................272 A. The “‘Unconstitutional’ Bloc” ...................................................273 B. The “Affirmation Alliance” .......................................................275 C. The New Justices’ Association ..................................................276 D. The Kennedy Swing...................................................................277 VII. CONCLUSION .........................................................................................278

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America's fundamental law seeks to make real the brotherhood of man.2 I. PREFACE In education, race-based admissions criterion is part of a larger governmental initiative colloquially known as “affirmative action.”3 The term “affirmative action” derives from an Executive Order of President John F. Kennedy instructing the “Committee on Equal Employment Opportunity . . . immediately to scrutinize and study employment practices of the Government of the United States, and to consider and recommend additional affirmative steps which should be taken . . . to realize more fully the national policy of nondiscrimination.”4 Discrimination generally refers to “[t]he effect of a law . . . that denies privileges to a certain class because of race, age, sex, nationality, religion, or disability.”5 A plain reading of this definition indicates that nondiscrimination is race-neutral and universally applicable. Less than twenty years after President Kennedy’s noble nondiscrimination proclamation, the Supreme Court of the United States preserved a University of California admissions program aimed at increasing the enrollment of certain students on the basis of their race.6 The assumed

Justice Louis Brandeis, Speech to the Conference of Eastern Council of Reform Rabbis (Apr. 25, 1915). 3

At this point it should be noted that this Article’s focus is racial affirmative action. Affirmative action includes not only programs designed to address racial discrimination, but also gender discrimination. For further discussion of gender-based affirmative action programs, see Jason M. Skaggs, Justifying Gender-Based Affirmative Action Under United States v. Virginia’s “Exceedingly Persuasive Justification Standard, 86 CALIF. L. REV. 1169 (1998) (addressing the differences between race and gender-based affirmative action programs); Rosalie Berger Levinson, Gender-Based Affirmative Action and Reverse Gender Bias: Beyond Gratz, Parents Involved, and Ricci, 34 HARV. J. L. & GENDER 1 (2011) (same). 4

Exec. Order No. 10,925, 26 Fed. Reg. 1,977 (Mar. 6, 1961) (emphasis added).

BLACK’S LAW DICTIONARY 534 (9th ed. 2009).

See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). Although the Court affirmed the school’s use of a race-conscious program, it also held that such program must provide an individualized review of each applicant’s file. See id. at 317.

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corollary of certain students being admitted because of their race is that other students would be denied admission on the basis of their race, i.e., suffer from “reverse discrimination.”7 And so continues the national debate regarding the constitutional permissibility of programs designed to achieve racial diversity in education, and programs whose fate will likely be determined by one of two unlikely candidates: another Kennedy—Justice Anthony Kennedy—or the Court’s newest member, Justice Elena Kagan.8 II. INTRODUCTION Affirmative action refers to “[a] set of actions designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination.”9 There have traditionally been three primary focuses of affirmative action programs: employment, public contracting, and education, the latter of which is the focus of this Article.10

The earliest reference to the term “reverse discrimination” appears in Quarles v. Phillip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968). In Quarles, the court discussed the Civil Rights Act of 1964 and stated that “[t]he history [of the Act] leads the court to conclude that Congress did not intend to require reverse discrimination.” Id. at 516 (internal quotation marks omitted). The term had gained sufficient legal significance by 1974, when John Hart Ely, one of the most widely-cited legal scholars in United States history, wrote that “We would not allow a state university to favor applicants because they are White . . . whether it [sic] called the adjustment quota, affirmative action, or anything else. To allow [AAE programs] to favor applicants because they are Black seems to be countenancing the most flagrant of double standards.” John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 723 (1974). 8

See infra Part VI (C–D).

BLACK’S LAW DICTIONARY 68 (9th ed. 2009).

For further information on affirmative action, see Mark R. Killenbeck, Pushing Things Up To Their First Principles: Reflections on the Values of Affirmative Action, 87 CALIF. L. REV. 1299 (1999) (general discussion of affirmative action); Cynthia L. Estlund, Putting Grutter to Work: Diversity, Integration, and Affirmative Action in the Workplace, 26 BERKELEY J. EMP. & LAB. L. 1 (2005) (discussing affirmative action in employment).

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With the Court’s landmark decision in Regents of the University of California v. Bakke,11 affirmative action in the context of higher education burst onto the legal scene amidst a time when both the federal and states’ governments were initiating broad affirmative action programs. Although various bases for such programs have been asserted in the thirty-four years since Bakke, the traditional and most common justification is that diversity in higher education is a compelling state interest.12 Part III will examine the historical and legal underpinnings of affirmative action in education (“AAE”) programs, as well as the specific legislative and executive history, which has ultimately led to the Court’s upcoming consideration of AAE in Fisher v. University of Texas at Austin (“Fisher V”).13 Part III will also explore Supreme Court jurisprudence regarding AAE programs. This survey will begin with Regents of the University of California v. Bakke,14 generally accepted as the first major AAE decision, then unpack two landmark AAE cases against the University of Michigan decided on the same day ⎯ Gratz v. Bollinger15 and Grutter v. Bollinger.16 Finally, Part III will examine and analyze the Court’s voluminous and controversial decision in Parents Involved in Community Schools v. Seattle School District No. 1.17

438 U.S. 265 (1978).

See Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381 (1998) (discussing affirmative action policies in secondary education). 13

631 F.3d 213 (5th Cir. 2011), cert. granted, 2012 WL 538328 (U.S. Feb. 21, 2012) (No. 11345). 14

438 U.S. 265 (1979).

539 U.S. 244 (2003).

539 U.S. 306 (2003).

551 U.S. 701 (2007). It should be noted that Parents Involved does not address AAE in the context of secondary education, but rather the focus of the case is a primary education AAE program.

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Ultimately, the Court concluded from this line of cases that AAE programs are not per se constitutionally defective.18 Rather, the Court reasoned that the appropriate standard of review is “strict scrutiny”19 for AAE programs based on a “suspect” classification such as race.20 To pass constitutional muster under strict scrutiny, AAE programs must be narrowly tailored to serve a compelling governmental interest.21 Part IV will synthesize relevant Supreme Court precedent into a workable set of rules with which to analyze the constitutional issues presented by AAE programs. Part V will provide an overview of the factual and procedural background of Fisher V,22 specifically the Fifth Circuit’s determination that the University of Texas’ admissions policies, to the extent that an applicant’s race is considered, are violative of the Fourteenth Amendment.23 The United States Supreme Court granted the University of

See, e.g., id. at 720 (holding that for an AAE program to be valid, “the use of individual racial classifications . . . [must be] “narrowly tailored” to achieve a “compelling” government interest); Grutter, 539 U.S. at 307 (same); Gratz, 539 U.S. at 246 (holding that if an AAE program is not narrowly tailored, it violates the Equal Protection Clause); Bakke; 438 U.S. at 319–320 (1979) (holding that race can be taken into account, but its consideration must be part of a full individualized review). 19

See, e.g., Johnson v. California, 543 U.S. 499, 505–06 (2005) (holding that, if the government distributes burdens or benefits on the basis of individual racial classifications, the action is reviewed under strict scrutiny); Grutter, 539 U.S. at 326 (holding that all racial classifications made by the government are reviewed under strict scrutiny); Adarand Constructors, Inc., v. Pena, 515 U.S. 200, 224 (1995) (holding that “all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized”). 20

See generally Korematsu v. United States, 323 U.S. 214 (1944) (holding that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect). 21

See Adarand, 515 U.S. at 227 (holding that “all racial classifications, . . . are constitutional only if they are narrowly tailored measures that further compelling governmental interests). 22

Fisher v. Univ. of Tex. at Austin (“Fisher III”), 631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (mem.) (2012). 23

Fisher v. Univ. of Tex. at Austin (“Fisher IV”), 644 F.3d 301 (5th Cir. 2011) (en banc) (per curiam), aff’g 631 F.3d 213 (5th Cir. 2011).

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Texas’ petition for a writ of certiorari on February 21, 2012,24 and heard oral arguments on October 10, 2012. Part VI will evaluate available jurisprudence to estimate the Supreme Court’s likely ruling in Fisher V, including an assessment of which Justices will vote to reverse Fisher III25 and which will vote to go further and overrule Grutter. Next, Part VI will shed special light on the likely votes of the Court’s two newest members, neither of which have yet heard an AAE case as members of the Court, and analyze the various ways Justice Kennedy might affect the case’s adjudication. III. THE EVOLUTION OF AFFIRMATIVE ACTION The idea of equality in education is not a 20th century invention, but is merely one point in the continuum of our nation’s advancement toward a just and fair society. Any thoughtful analysis of the constitutional issues surrounding AAE programs must be based upon a thorough understanding of the subject’s history. That history shows that the constitutionality of programs which seek to promote racial diversity, whether it be diversity in government contracting, public sector employment, or education, has been questioned since their inception, regardless of how noble their proponents may believe them to be. A. Origins: The Roosevelt Era In the mid-20th century, the legislative and executive branches of the United States government recognized that the federal government’s budgetary power could be used as a tool to aid in eliminating racial discrimination. Although reasonable minds may disagree on when the genesis of AAE programs occurred, it is fair to say that the roots of the federal government’s modern anti-discrimination policies date at least as far back as President 24 25

132 S.Ct 1536 (mem.) (2012).

For clarity and ease of reference, the individual cases involved in Fisher will be referenced as follows: the District Court’s denial of plaintiff’s preliminary injunction (Fisher I); the District Court’s ruling (Fisher II); the Fifth Circuit’s ruling (Fisher III); the Fifth Circuit’s denial of rehearing en banc (Fisher IV), and; the Supreme Court’s pending adjudication (Fisher V).

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Franklin D. Roosevelt’s administration, during which the first executive orders prohibiting discrimination in federal contract procurement were issued.26 In 1941, President Roosevelt issued Executive Order 8802 whose stated purpose was to “encourage full participation in the national defense program by all citizens . . . regardless of race, creed, color, or national origin” because the only way the country could be defended was with “the help and support of all groups within its borders.”27 Accordingly, Roosevelt ordered that “[a]ll contracting agencies of the Government of the United States shall include in all defense contracts hereafter negotiated by them a provision obligating the contractor not to discriminate against any worker because of race, creed, color, or national origin.”28 Notably, however, Roosevelt issued the Order because of the compelling governmental interest in preparing the nation for war with Germany and Japan, not for the altruistic reasons of later affirmative action legislation. The Order merely prohibited contemporaneous and future discrimination; it did not have an eye towards any past societal, individual, or industry-specific discrimination, all three of which became future justifications for race-based legislation. B. Expansion: The Johnson Era Affirmative action aims to produce a society free of discrimination. Perhaps the greatest advancements toward that aim were made during Lyndon Johnson’s administration. During his presidency, Johnson constantly pushed for enhanced civil rights protections. The Johnson administration’s most significant accomplishment in the anti-discrimination arena was the promulgation of the Civil Rights Act of 1964.29 Included in the Act’s massive

Exec. Order No. 8,802, 6 Fed. Reg. 3,109 (June 25, 1941).

Id.

Pub. L. No. 88-352, § 706, 78 Stat. 241 (codified at 42 U.S.C.A. § 2000 et seq. (West 2010)).

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and groundbreaking legislation, and of significant importance to AAE programs, was Title VI.30 Title VI, enacted to prevent discrimination by agencies that receive federal funding, states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 31 Among the programs receiving funding from the federal Department of Education are “[all] state education agencies . . . [and] 3,200 colleges and universities.”32 Johnson made another pioneering move when he issued the “Equal Employment Opportunity” Order on September 24, 1965.33 Similar to Executive Order 8802 that Roosevelt had issued in 1941, the Equal Employment Opportunity Order reinforced several of the federal government’s already-established anti-discrimination policies, including a prohibition on discrimination in governmental employment, a prohibition on discrimination in employment by government contractors and subcontractors, and nondiscrimination provisions in federally assisted construction contracts.34 In the wake of the 1960s civil rights legislation, the late 1970s and early 1980s became a period during which the nation’s judiciary grappled with the constitutional implications of affirmative action programs.35 One of the many issues courts struggled with, aside from general treatment of affirmative action programs, was how to deal specifically with AAE programs, which had been implemented ostensibly to ensure institutional compliance with federal nondiscrimination laws. 30

78 Stat. 252, 42 U.S.C.A. § 2000d (West 2010).

Id.

U.S. DEP’T OF EDUC., http://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html (last visited Apr. 11, 2012). 33

Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (Sept. 24, 1965).

Id.

See, e.g., Bakke, 438 U.S. 265 (1978) (holding the University of California’s race-conscious admissions policy unconstitutional); Fullilove v. Klutznick, 448 U.S. 448 (1980) (holding that Congress could use its power under the Spending Clause to remedy past discrimination).

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C. Interpretation: The Landmark Education Cases One might consider the decisions in a plethora of cases regarding AAE programs to be “landmark.”36 By the late 1970s, flaws in affirmative action policies began to appear in greater numbers and the term “reverse discrimination” had begun to come into common parlance.37 In 1978, the Supreme Court addressed the issue head on in Bakke, ruling that race may be considered in a “holistic review” of an applicant’s file.38 After Bakke, there was relative calm regarding AAE programs for twenty-five years. Then, in 2003, the Supreme Court decided two cases, Gratz v. Bollinger39 and Grutter v. Bollinger,40 which reinforced Bakke. Most recently, however, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court prohibited assigning students to public schools solely for the purpose of achieving racial integration and declined to recognize racial balancing as a compelling state interest.41 This Part will address each of the aforementioned cases in turn, with the hope of building a logical framework with which to predict the Court’s forthcoming decision in Fisher V.42

To provide a concise history on the subject, this Part has narrowed the field to only Supreme Court decisions, which have played an extraordinary role in the evolution of AAE policy. There are a huge number of lower federal court cases involving AAE programs, and the positions adopted are varied. Compare Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306 (2003) (holding that admissions programs which discriminate in favor of minority applicants by giving substantial racial preferences violate equal protection), with Brewer v. West Irondequiot Cent. Sch. Dist., 212 F.3d 738 (2d Cir. 2000) (holding that reducing racial isolation and de facto segregation justify AAE programs). 37

See supra note 7.

Bakke, 438 U.S. 265 (1978).

539 U.S. 244 (2003).

539 U.S. 306 (2003).

See Parents Involved, 551 U.S. at 702–04 (2007).

631 F.3d 213 (5th Cir. 2011), cert. granted, 2012 WL 538328 (U.S. Feb. 21, 2012) (No. 11345).

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1. Regents of the University of California v. Bakke In Bakke, the Court addressed the specific issue of whether the University of California at Davis’ admissions policy that set forth an implicit racial quota was constitutional. Beginning in the early 1970s, “[t]he Medical School of the University of California at Davis [(“Davis”)] had two admissions programs for the entering class of 100 students—the [‘]regular[ʼ] admissions program and the [‘]special[ʼ] admissions program.”43 Out of the one hundred available slots, sixteen were reserved for applicants selected via the “special” admissions program.44 The 1973 and 1974 application forms allowed applicants to request consideration as “economically and/or educationally disadvantaged” and as members of a “minority group.”45 None, of the many non-minority students who requested consideration because of an economic or educational disadvantage were accepted under the “special” program, however.46 Allan Bakke, a Caucasian male applicant, applied to Davis in both 1973 and 1974 under the “general” admissions program and was rejected both times.47 In both years, “special” applicants “with significantly lower scores than [Bakke’s]” were accepted.48 After his second rejection, Bakke sought a court order compelling his admission to Davis.49 Bakke claimed that: 43

Bakke, 438 U.S. at 265.

Id.

Id. at 266.

See id.

Id. Although the author finds no correlation, some opponents of Davis’ AAE program have pointed to the tale of Patrick Chavis as the epilogue to Bakke. Chavis, who was one of the “special” applicants admitted over Bakke, became an obstetrician-gynecologist. In a 1995 article promoting AAE programs, the New York Times portrayed Chavis as “an example of the [kind of] good [an AAE program] does.” Nicholas Lemann, Taking Affirmative Action Apart, N.Y. TIMES, June 11, 1995, at 36. In the same article, Bakke was described as a doctor who “has no private practice and works on an interim basis” and has not “set the world on fire as a doctor.” Id. Moreover, in 1997, Chavis himself said, “We need to go back and do a comparison of what [students admitted under the “special” program] are doing now compared to [Bakke].” Kenneth Lloyd Billingsley, Affirmative Action in Action, FRONTPAGE MAGAZINE, Sept. 1, 1997, http://archive.frontpagemag.com/readArticle.aspx?ARTID=22235.

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[T]he special admissions program operated to exclude him on the basis of his race in violation of the Equal Protection Clause of the Fourteenth Amendment . . . and § 601 of Title VI of the Civil Rights Act of 1964, which provides, inter alia, that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance.50 “The trial court found that the [‘]special[ʼ] program operated as a racial quota” and violated both the United States Constitution and Title VI; as such it declared Davis “could not take race into account when making admissions decisions.”51 The court did not, however, compel Bakke’s admission due to insufficient evidence “that he would have been admitted but for the [‘]special[ʼ] program.”52 On appeal, the California Supreme Court, applied strict scrutiny,53 and affirmed the trial court’s decision that Davis’ “special” program violated the federal Constitution.54 However, Chavis’ medical license was revoked less than a year later due to his “inability to perform even the most basic duties required of a physician.” Id. This inability resulted in a patient’s death, one of more than ninety counts against him. Douglas Martin, Patrick Chavis, 50, Affirmative Action Figure, N.Y. TIMES, Aug. 15, 2002, available at http://www.nytimes.com/2002/08/15/us/patrick-chavis-50-affirmative-action-figure.html. 49

Bakke, 438 U.S. at 266.

Id.

Id. The trial court also found the program violative of the California Constitution.

Id.

Bakke v. Regents of the Univ. of Cal., 18 Cal.3d 34, 49 (Cal. 1976) aff’d in part, rev’d in part, 438 U.S. 265 (1978). Clearly explaining the standard to be applied, the Supreme Court of California stated, Classification by race is subject to strict scrutiny, at least where the classification results in detriment to a person because of his race. In the case of such a racial classification, not only must the purpose of the classification serve a ‘compelling state interest,’ but it must be demonstrated by rigid scrutiny that there are no reasonably ways to achieve the state's goals by means which impose a lesser limitation on the rights of the group disadvantaged by the classification.

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In its decision, the United States Supreme Court produced a fractured 5-4 opinion—including two pluralities55—delivered by Justice Powell.56 The Court reversed the California Supreme Court’s decision “insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.”57 The Court concluded that excluding a candidate from consideration solely on the basis of race was unconstitutional, no matter what the purpose.58 Moreover, because Davis could not prove that even without the “special” admissions program Bakke would not have been admitted, Bakke’s admission was compelled.59 However, the Court stated that “[e]thnic diversity, . . . is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.”60 The Court further stated that universities could use race as a “plus factor,”61 citing the Harvard College Admissions Program as a constitutionally valid program which took into account all of an applicant’s qualities during a “holistic review.”62 In a plurality opinion, Justice Brennan concluded that Davis’ “special” program was in fact constitutional and that the California Supreme Court’s decision warranted reversal in full.63 Brennan also reasoned that race could be used as a factor when it was for the purpose of remedying extensive, Id. 54

Id. at 38.

One plurality was comprised of Justices Brennan, White, Marshall, and Blackmun, and the other plurality was comprised of Chief Justice Burger and Justices Stevens, Stewart and Rehnquist. Additionally, Justices White, Marshall, and Blackmun all filed separate opinions. 56

Bakke, 438 U.S. at 267-72.

Id. at 267.

Id. at 320.

Id.

Id. at 314.

Id. at 317.

See Bakke, 438 U.S. at 316. The term “holistic review” would first be used in Grutter. See Grutter, 539 U.S. at 309. 63

Bakke, 438 U.S. at 325–26.

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prolonged underrepresentation of certain minorities in society generally.64 Finally, Justice Stevens’ opinion concluded that Davis’ “special” admissions program violated Title VI because it excluded from consideration an applicant on the basis of race.65 After Bakke, and in accordance with the Court’s position therein, many colleges and universities adopted “holistic review” admissions policies that included racial minority status as a “plus factor.” 2. The University of Michigan Cases In 2003, the Supreme Court heard two cases concerning AAE programs, both originating with the University of Michigan (“Michigan”). In Gratz v. Bollinger, the Court, in a 6-3 decision, held that Michigan’s undergraduate AAE program was unconstitutional because it did not adequately provide “individual[] consideration” of each applicant.66 However, in Grutter v. Bollinger, with a narrower 5-4 majority, the Court held that admissions policy of the University of Michigan’s Law School (“Michigan Law”) was indeed constitutional because it sufficiently allowed for an individual assessment of each applicant’s contributions to class diversity.67 Gratz and Grutter are crucial to the analysis of Fisher in Part VI of this Article because five of the Court’s nine current members contributed to those decisions.68 a. Gratz v. Bollinger Gratz involved two petitioners, Jennifer Gratz and Patrick Hamacher, both Caucasian residents of Michigan, who applied for admission to the University of Michigan for the fall semesters of 1995 and 1997, respectively;

Id. at 370–71.

Id. at 421.

539 U.S. 244, 271 (2003).

539 U.S. 306, 307 (2003).

The five current members of the Court who took part in Gratz and Grutter are Justices Breyer, Ginsburg, Kennedy, Thomas, and Scalia.

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Michigan denied both petitioners admission.69 In October 1997, the petitioners filed a class action suit which consisted of applicants who had “applied for and were not granted admission to . . . the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treat[ed] less favorably on the basis of race in considering their application for admission.”70 The petitioners alleged “violations and threatened violations . . . [of] equal protection of the laws under the Fourteenth Amendment . . . and for racial discrimination in violation of 42 U.S.C. §§ 1981, 1983, and 2000d et seq.”71 Although Michigan’s undergraduate admissions policies changed several times during the time period relevant to the Gratz litigation, as of 2003 Michigan used a 150-point scale to rank applicants, with 100 points needed to guarantee admission.72 Under that policy, underrepresented racial minorities automatically received twenty points because of their racial status.73 For a comparison, if an applicant’s artistic talent “rivaled that of Monet or Picasso, the applicant would receive, at most, five points.”74 The Court75 held that because one-fifth of the points necessary to guarantee admission under Michigan’s admissions policy were automatically awarded solely on the basis of the applicant’s status as an “underrepresented minority,” the policy was “not narrowly tailored to achieve the interest in educational diversity.”76 The Court seemed to articulate the stance that the term “diversity” was being too narrowly defined, i.e., that Michigan implicitly

.Id.

Id. at 252–53 (internal quotation marks omitted).

Id. at 252 (internal quotation marks omitted).

Id. at 255.

Id. at 256.

Gratz, 539 U.S. at 273.

The majority in Gratz was comprised of Chief Justice Rehnquist and Justices O’Connor, Scalia, Thomas, and Kennedy. Justice Breyer concurred in the judgment and also joined Justice O’Connor’s separate concurrence. 76

See id. at 270 (emphasis added).

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construed the term to mean only “racial” diversity instead of a broader interpretation that encompassed a plethora of “soft variables.”77 Gratz produced three separate dissenting opinions.78 Justice Ginsburg, joined by Justice Souter, believed that it was constitutionally permissible for Michigan to have an admissions policy in which race was considered “to prevent discrimination being perpetuated and to undo the effects of past discrimination.”79 An insightful dissent filed by Justice Souter and joined in part by Justice Ginsburg observed that the argument that Michigan’s admissions policy operated as a de facto set-aside for racial minorities “boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not. But suspicion does not carry petitioners’ burden of persuasion in this constitutional challenge . . . .”80 Importantly, Souter foreshadowed the issues surrounding “percentage plans”81 that would arise nine years later in Fisher V by stating: In contrast to [Michigan’s] forthrightness in saying just what plus factor it gives for membership in an underrepresented minority, it is worth considering the character of [“percentage plans”] thrown up as preferable, because supposedly not based on race. . . . While there is nothing unconstitutional about such a practice, it nonetheless suffers from a serious disadvantage. It is the disadvantage of deliberate obfuscation. The “percentage plans” are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast, Michigan states its purpose directly and, if this were a 77

See infra p. 253 and note 87.

The three dissenting opinions were filed by Justices Stevens, Souter, and Ginsburg. Stevens believed the petitioners lacked standing and that the case should have been dismissed. See Gratz, 539 U.S. at 291 (Stevens, J., dissenting). 79

Gratz, 539 U.S. at 302 (quoting United States v. Jefferson Cnty. Bd. of Educ., 372 F.2d 836, 876 (5th Cir. 1966)). 80

Id. at 296.

See discussion infra Part V(A).

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doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.82 b. Grutter v. Bollinger In the companion case to Gratz, the Court in Grutter v. Bollinger analyzed the University of Michigan Law School’s admissions policies.83 The petitioner, Barbara Grutter, was a Caucasian female Michigan who applied to Michigan Law in 1996 as a Michigan resident. Despite Grutter’s excellent credentials, Michigan Law denied her admission.84 Like the petitioners in Gratz, Grutter filed suit alleging Michigan Law “discriminated against her on the basis of race in violation of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d; and Rev. Stat. § 1977, as amended, 42 U.S.C. § 1981.”85 At the time of the litigation, the goal of Michigan Law’s admissions policy was to “achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts.”86 Michigan Law’s admissions policy ranked applicants by two different measures ⎯ “hard variables,” i.e., objective criterion such as GPA and LSAT scores, and “soft variables,” i.e., subjective criterion such as “the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection” ⎯ as well as the applicant’s status as a racial minority.87 Michigan Law asserted that its admissions policies required officials “to evaluate each applicant based on all the information available in the file,

Gratz, 539 U.S. at 297-98.

Grutter, 539 U.S. 306 (2003).

Id. at 316. Grutter had a 3.8 GPA and a 161 LSAT score. Id.

Id. at 317.

Id. at 315.

Id.

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including [soft variables] and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.”88 The Court89 found that Michigan Law “engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.”90 With a narrow majority, the Court held that “[t]he Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or § 1981.”91 The majority’s decision, however, was strongly criticized by Chief Justice Rehnquist, Justices Scalia and Thomas, and, perhaps most surprisingly, Justice Kennedy, who not only concurred in Rehnquist’s dissent but also penned a separate dissent. The Rehnquist dissent argued that Michigan Law failed to meet its burden under the principle of strict scrutiny of establishing the necessity of its AAE program.92 Accordingly, Rehnquist concluded that “[a]lthough the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.”93 Furthermore, Rehnquist found Michigan Law’s program fatally flawed “because it is devoid of any reasonably precise time limit on the . . . use of race in admissions.”94

Id. (emphasis added).

The Grutter majority was comprised of Justices O’Connor, Stevens, Souter, Ginsburg, and Breyer. 90

Grutter, 539 U.S. at 309.

Id. at 307.

See id. at 385–86 (Rehnquist, J., dissenting).

Id. at 380.

Id. at 386. The Court had previously emphasized the durational aspect in considering the constitutionality of race-conscious programs. See Fullilove v. Klutznick, 448 U.S. 448, 510 (1980).

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Justice Thomas, concurring in part and dissenting in part,95 regarded the majority’s decision, “which approves of only one racial classification,” as “confirm[ing] that further use of race in admissions remains unlawful,” a position with which he concurred.96 Interestingly, his dissent responded directly to the portion of the majority’s opinion which stated “[t]he Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”97 In contrast, Thomas believed that Michigan Law’s “current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in [25 years].”98 As further evidence of his frustration, Thomas stated “[t]he Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution.”99 During the intervening period between 2003 and the Court’s next major foray into the AAE arena, two new Justices joined the Court’s ranks. On July 1, 2005, Justice O’Connor announced that she would retire “upon the nomination and confirmation of [her] successor.”100 Subsequently, on July 19, 2005, President Bush nominated John Roberts to fill the vacancy that would be created by O’Connor’s retirement.101 However, six weeks later on September 3, 2005, Chief Justice Rehnquist died. Shortly thereafter, on September 5, 2005, President Bush withdrew Roberts’ nomination as O’Connor’s successor and instead nominated Roberts to fill the vacancy created by Rehnquist’s death.102 The Senate confirmed Roberts’ nomination as

In reality, Thomas merely concurred with his interpretation of the majority.

Grutter, 539 U.S. at 350–51 (Thomas, J., concurring).

Id. at 310 (majority opinion).

Id. at 351 (Thomas, J., concurring).

Id. at 370.

100

Letter from Sandra Day O’Connor, Associate Justice, Supreme Court of the United States, to George W. Bush, President of the United States (July 1, 2005), available at http://www.cspan.org/pdf/resignation_070105.pdf. 101

President George W. Bush, National Address (July 19, 2005).

102

President George W. Bush, National Address (Sept. 5, 2005).

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Chief Justice on September 29, 2005.103 With Rehnquist’s seat now filled, President Bush shifted his attention to filling O’Connor’s seat.104 On October 31, 2005, President Bush nominated Samuel Alito and Alito received Senate confirmation on January 31, 2006.105 3. Parents Involved in Community Schools v. Seattle School District No. 1 The uncertainty of these new additions to the Court eventually gave way to Parents Involved, a crucial case in developing a framework to analyze the Court’s forthcoming decision in Fisher V. Parents Involved is distinguishable from Gratz and Grutter in several ways.106 The most obvious distinction is that Parents Involved concerned an AAE program in primary education, not at institutions of higher education like Gratz and Grutter.107 In Parents Involved, the Seattle, Washington and Jefferson County, Kentucky school districts “voluntarily adopted student assignment plans that relied upon students’ races to determine which public schools certain children may attend.”108 Both school districts considered the student’s racial classification109 when a student was assigned to a particular school in the 103

S. 10771, 109th Cong. § 69 (2005). It is interesting to note that Roberts served as Rehnquist’s clerk from 1980–81. 104

Alito was not President Bush’s first choice. President Bush initially nominated Harriet Miers, but Miers withdrew her nomination after facing significant opposition and out of concern regarding potentially testifying about her service in the White House. Letter from Harriet Miers, to George W. Bush, President of the United States (Oct. 27, 2005), available at http://www.washingtonpost.com/wpdyn/content/article/2005/10/27/AR2005102700680_pf.html. 105

S. 385, 109th Cong. § 54 (2006).

106

The decision in Parents Involved is 168 pages long. Although the author could easily write a great deal on this case, only the most relevant themes will be addressed. 107

Compare Parents Involved, 551 U.S. 701, 709–10 (2007), with Gratz, 539 U.S. 244, 250 (2003), and Grutter, 539 U.S. 306, 311–12 (2003). 108 109

See generally Parents Involved, 551 U.S. 701 (2007).

Id. at 710. The Seattle school district classified children as white or nonwhite and the Jefferson County district classified children as black or “other.” Id.

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interests of ensuring that “the racial balance at the school falls within a predetermined range based on the racial composition of the district as a whole.”110 However, the specifics of each district’s AAE programs were distinguishable in certain important respects. Seattle School District Number 1 (“Seattle”)111 adopted a plan in 1998 that allowed incoming high school freshmen to choose from and rank by preference any of the district’s high schools with each school ranked in order of that student’s preference.112 As some schools were more popular than others, the district employed a series of “tiebreakers” to determine which students would be admitted into a school that had more requests than available seats.113 The first tiebreaker gave preference to students that had a sibling enrolled at the oversubscribed school.114 However, the next tiebreaker—the one around which the controversy centers—depended solely on the student’s race in relation to the racial composition of the school.115 The racial composition of public high school students in Seattle was approximately forty percent “white” and sixty percent “nonwhite.”116 If the oversubscribed school’s racial composition was not within ten percentage points of the district’s overall white/nonwhite composition, the district would identify the school as “integration positive;” once a school received this designation, only students whose race would

110

Id.

111

The Court took note of the fact that Seattle had never operated segregated public schools, nor had it ever been subject to court-ordered desegregation. See id. at 712. 112

Id. at 711.

113

Id.

114

Parents Involved, 551 U.S. at 711.

115

Id. at 712.

116

Id. Surprisingly, Seattle, with significant populations of Asian (15%), Black (9.9%), Hispanic/ Latino (5.3%), and Native American (1%), chose only to distinguish between “white” and “nonwhite.” See U.S. Census Bureau, Census 2000, available at http://www.ofm.wa.gov/pop/census2000/profiles/place/1605363000.pdf.

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“serve to bring the school into balance”117 gained admission until the racial composition was within the guideline range. The issues emanating from the Jefferson County, Kentucky (“Louisville”)118 district were in many ways similar to those from Seattle. The Louisville district’s twenty-five year court-ordered desegregation plan119 ended in 2000 after the District Court found that the vestiges of the Louisville district’s prior policy of segregation had been eliminated “[t]o the greatest extent practicable.”120 Then, in 2001, Louisville adopted a “voluntary” assignment plan, whereby most of the district’s public schools were required to maintain a minimum of fifteen percent and a maximum of fifty percent black121 student enrollment.122 The Louisville plan assigned a student first entering the district’s schools to a school based either on the proximity of that student’s address to the school or based on that student’s parental request for a particular school.123 However, if a student’s race would contribute to “racial imbalance” as defined under the plan, it denied that student’s assignment and/or preference.124 Initial assignment could result in an inconvenience ⎯ i.e., if the assigned school was farther away than the preferred and/or nearest school. Although subsequent transfer between schools was possible, the district would, as with the initial school assignment deny transfer requests solely on the basis of the racial guidelines.125, 117

Parents Involved, 551 U.S. at 712 (citing Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1169 (9th Cir. 2005)). 118

The city of Louisville composed the majority of the Jefferson County, Kentucky district.

119

See Hampton v. Jefferson Cty. Bd. of Ed., 72 F. Supp. 2d 753, 762–764 (W.D. Ky. 1999).

120

Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 360 (W.D. Ky. 2000).

121

See supra note 109. The Louisville district classified students only as black or “other.”

122

Parents Involved, 551 U.S. at 716.

123

Id.

124

Id.

125

Id. at 717.

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Upon analyzing the facts, the Court126 recognized two qualifying compelling interests of racial classifications in the school context: remedying the effects of past intentional discrimination and diversity in higher education.127 The Court found that neither district could rely on the interest of remedying the effects of past discrimination.128 Seattle had never operated a segregated public education system, and Louisville had previously been found to achieve unitary status.129 The Court further held that both plans failed to demonstrate the diversity interest in higher education established in Grutter,130 which the Court interpreted as “not focused on race alone but encompass[ing] ‘all factors that may contribute to student body diversity.’”131 The Court also 126

The majority in Parents Involved was comprised of Chief Justice Roberts, Justices Scalia, Thomas, Alito, and Kennedy. However, to the extent the majority held in Section III-B that “[h]owever closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled ‘racial diversity’ or anything else,” the Court produced only a plurality because Justice Kennedy did not join that Section of the opinion. See Parents Involved, 551 U.S. at 733. Additionally, although Justice Thomas wholly concurred in the majority opinion, he also wrote a concurring opinion in which he lambasted Justice Breyer’s dissent. Id. at 748 (Thomas, J., concurring). In his concurring opinion, Justice Thomas wrote: Disfavoring a colorblind interpretation of the Constitution, [Justice Breyer] would give school boards a free hand to make decisions on the basis of race—an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education. This approach is just as wrong today as it was a half century ago. Id. (internal citations omitted). 127

See id. at 720–22 (majority opinion). See also Freeman v. Pitts, 503 U.S. 467, 494 (1992) (recognizing the interest in remedying the effects of past discrimination); Grutter, 539 U.S. at 328 (2003) (recognizing the interest in diversity in higher education). 128

See Parents Involved, 551 U.S. at 720–21.

129

Id.

130

See id. at 722-25. Although the Court framed its analysis in terms of diversity in higher education, the actual analysis focused merely on the interest in a diverse student body; “higher education” was mentioned only in passing and did not play a significant role in the Court’s analysis. See Grutter, 539 U.S. 306. 131

Parents Involved, 551 U.S. at 722 (quoting Grutter, 539 U.S. at 337 (2003)).

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noted that, “it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race.”132 With this framework in mind, the Court examined the Seattle and Louisville plans and held that they failed the Grutter analysis because, under those plans, “race is not considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints;’ race, for some students, is determinative standing alone.”133 Justice Kennedy’s concurrence, likely to play an important role in the Court’s upcoming decision in Fisher V, warrants analysis. First, Justice Kennedy agreed with the majority that “[d]iversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.”134 Kennedy concluded that both Seattle and Louisville’s AAE programs failed strict scrutiny analysis. Kennedy found that Louisville’s AAE program failed because the district failed to “establish, in detail, how decisions based on an individual student’s race are made,”135 a threshold requirement for proponents of such challenged legislation. Although Kennedy never stated that he believed Louisville’s plan, as operated, to be unconstitutional, he nevertheless found that the proponents failed to sufficiently establish the plan’s details and “[w]hen a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the State.”136 Kennedy also found that Seattle’s AAE program failed strict scrutiny, even though the district described in detail the “methods and criteria used to determine assignment decisions on the basis of individual racial

132

Id. (quoting Grutter, 539 U.S. at 324–25).

133

Id. at 723 (quoting Grutter, 539, U.S. at 330).

134

Id. at 783 (Kennedy, J., concurring).

135

Id. at 784–85 (“[Louisville] fails to make clear . . . who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made . . . or how it is determined which of two similarly situated children will be subjected to a given race-based decision.”). 136

Id. at 786.

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classifications,” because the district failed to show “its plan to be narrowly tailored to achieve its own ends.”137 Responding to the Section III-B portion of the Court’s opinion,138 which he found “too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race,” Justice Kennedy stated that he believed the Constitution does not “require[] schools districts to ignore the problem of de facto resegregation in schooling.”139 Kennedy found that race-conscious measures are permissible, but those measures cannot “treat[] each student in a different fashion solely on the basis of . . . race.”140 Kennedy stated that of Justice Breyer’s reliance “on this Court's precedents to justify the explicit, sweeping, classwide [sic] racial classifications at issue here is a misreading of our authorities that, it appears to me, tends to undermine well-accepted principles needed to guard our freedom.”141 In fact, Kennedy went so far as to say that the dissent’s analysis was so permissive of the challenged legislation that it “bears more than a passing resemblance to rational-basis review.”142 Kennedy noted that the dissent’s assertion that it was merely following stare decisis by relying on the majority opinions of Gratz and Grutter was “simply baffling.”143 Kennedy found Gratz inapplicable because it involved a system in which race was not 137

See Parents Involved, 551 U.S. at 786–87(Kennedy, J., concurring). Kennedy took issue with the fact that under Seattle’s plan, a school with “fifty percent [Asian] students and fifty percent white students but no [Black], Native American, or Latino students would qualify as balanced, while a school with thirty percent [Asian], twenty-five percent [Black], twenty-five percent Latino, and twenty percent white students would not.” Id. at 787. 138

Without Justice Kennedy’s acquiescence, Section III-B is merely a plurality.

139

Parents Involved, 551 U.S. at 787–88 (Kennedy, J., concurring).

140

Id. at 789. Kennedy suggested some permissible race-conscious measures, such as “strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.” Id. 141

Id. at 790–91.

142

Id. at 791.

143

Id. at 792.

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the entire classification, and he found Grutter unsupportive of the dissent’s position because the system sustained in Grutter, unlike the Seattle and Louisville systems, was “flexible enough to take into account ‘all pertinent elements of diversity.’”144 In conclusion, and revealing what will perhaps be the logic behind his decision in Fisher V, Kennedy stated that, because of the inherent problems in defining “race” and who should be a part of a particular classification, the Constitution allows “the individual, child or adult, [to] find his own identity, [to] define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.”145 When analyzed in conjunction with language found earlier in his concurrence, this statement seems to indicate Justice Kennedy’s belief that in order for an AAE program to be constitutional, it must not allow for decisions to be made on an individual basis. Rather, broad, race-conscious decisions that are race-neutral on an individual level are a constitutionally permissible means to achieving the governmental interest in diversity. IV. CONSTITUTIONAL STANDARDS FOR AFFIRMATIVE ACTION IN EDUCATION PROGRAMS Bakke, Gratz, Grutter, and Parents Involved represent the keystones of the Court’s jurisprudential evolution in AAE cases. Before turning attention to Fisher V, it is important to recognize the constitutional standards to which an AAE program will currently be held. First, the appropriate standard of review for such programs is strict scrutiny.146 This “‘standard of review . . . is not dependent on the race of those burdened or benefited by a particular classification.’”147

144

Id. at 793 (quoting Grutter, 539 U.S. at 341).

145

Parents Involved, 551 U.S. at 797 (Kennedy, J., concurring).

146

See cases cited supra notes 19–21.

147

Adarand, 515 U.S. 200, 222 (2003) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989) (plurality opinion)).

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For an AAE program to survive strict scrutiny, the proponent “must demonstrate that the use of individual racial classifications . . . is ‘narrowly tailored’ to achieve a ‘compelling’ government interest.”148 In other words, it must provide individual consideration of applicants of all races.149 Although a determination that a challenged program is narrowly tailored necessitates a fact-intensive, subjective inquiry, “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative.”150 However, an AAE program is per se invalid if it “insulat[es] each category of applicants with certain desired qualifications from competition with all other applicants.”151 The presence of a compelling governmental interest is an objective measure, of which the Court has recognized two. The first interest is in “remedying the effects of past intentional discrimination;”152 however, it seems that this interest has limited applicability.153 The second recognized compelling interest is in diversity; whether or not that interest is limited to higher education seems unclear after the Court’s decision in Parents Involved.154 This framework will be essential to accurately predicting the Court’s upcoming decision in Fisher V.155 V. THE CONTINUUM: FISHER V. UNIVERSITY OF TEXAS AT AUSTIN The Supreme Court remained silent on AAE cases for the five years following Parents Involved until February 21, 2012, when the Court granted 148

Parents Involved, 551 U.S. at 720 (citing Adarand, 515 U.S. at 227 (1995)).

149

See Grutter, 539 U.S. at 337.

150

Id. at 339; see also, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280, n.6 (1986).

151

Bakke, 438 U.S. at 315 (1978).

152

Parents Involved, 55 U.S. at 702 (citing Freeman v. Pitts, 503 U.S. 467, 494 (1992)).

153

The Court in Parents Involved invalidated Seattle’s AAE program in part because that district had never operated a segregated public education system. See id. at 702–03. 154

Compare Grutter, 539 U.S. at 328 (recognizing the diversity interest in higher education), with Parents Involved, 551 U.S. 722–25 (recognizing the diversity interest in higher education, but conducing the analysis with only a general interest in diversity). 155

See infra Part VI.

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certiorari in Fisher V.156 At the time of this writing, the Supreme Court has not yet heard oral arguments in Fisher V. Therefore, to provide the ideological support for how each side of a likely divided Court will decide the case, both the Fifth Circuit’s panel decision157 – which upheld Texas’ admissions policy – and the dissenting opinion from Fisher’s petition for rehearing158 – which concluded that the program is unconstitutional – will be analyzed. In Fisher V, as in Gratz, the two petitioners, Abigail Fisher and Rachel Michalewicz, are both Caucasian.159 The University of Texas at Austin (“Texas”) denied both petitioners’ summer and fall admission into the 2008 freshman class at.160 The petitioners originally sought a preliminary injunction requiring Texas to re-evaluate their applications for admission without considering their race and grant them admission if the re-evaluation produced a different result, but their request was ultimately denied.161 A. Texas’s Admissions Program Texas’s admissions process has two major components. The primary component is the “Top Ten Percent Law,”162 which guarantees Texas high school students graduating in the top ten percent of their class admission into any state university.163 The second facet of Texas’s program—which applies to all applicants not admitted under the Top Ten Percent Law—is known as

156

631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (mem.) (2012).

157

Fisher III, 631 F.3d 213 (5th Cir. 2011).

158

Fisher IV, 644 F.3d 301 (5th Cir.) (en banc) (Jones, J., dissenting) (per curiam), aff’g 631 F.3d 213 (5th Cir. 2011). 159

Fisher v. Texas (“Fisher I”), 556 F. Supp. 2d 603, 605 (W.D. Tex. 2008).

160

Id. at 605.

161

Id. at 605, 610.

162

1997 Tex. Sess. Law Serv. Ch. 155 (West).

163

Fisher I, 556 F. Supp. 2d at 605.

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the “AI/PAI Plan,” which is itself composed of two scores: an Academic Index (“AI”) and a Personal Achievement Index (“PAI”).164 The AI is an objective score based on an applicant’s class rank, standardized test scores, and high school curriculum.165 The PAI is a subjective score that is itself comprised of three separate scores: two applicant essays submitted by the applicant,166 and a completely subjective assessment of the applicant’s “demonstrated leadership qualities, extracurricular activities, honors and awards, work experience, community service, and special … circumstances.”167 “Special circumstances” refer to “the socioeconomic status of the family and the [applicant’s] school, a singleparent home, whether languages other than English are spoken at home, family responsibilities, and race.”168 Texas’s program organizes the applicants’ calculated AI/PAI scores into a selection matrix.169 The program then allocates the applicants according to their major preferences, “although in reality there is little availability in most majors other than Liberal Arts after application of the Top [Ten] Percent Law.”170 The program considers applicants for their first choice of major and then, if not admitted, considers them for their second choice of major. If still not admitted, an applicant is then designated an undeclared liberal arts major.171 The issue in Fisher V arises from the application of the AI/PAI component to an applicant pool that has already shaped by the Top Ten Percent Law. The Texas legislature enacted the Top Ten Percent Law to 164

Id.

165

Id.

166

Although characterized as subjective, the essay readers scored within one point of each other 91% of the time. See Fisher v. Univ. of Tex. at Austin (“Fisher II”), 645 F. Supp. 2d 587, 597 (W.D. Tex. 2009). 167

Fisher I, 556 F. Supp. 2d at 606 (emphasis added).

168

Id. (emphasis added).

169

Id.

170

Id.

171

Id.

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promote diversity,172 and has proven its success, boasting one of the country’s most racially diverse public university systems.173 The question that emerges then, is whether Texas’s consideration of the race of applicants who do not benefit from the Top Ten Percent Law is a permissible attempt to balance the racial composition of the student body with that of the state. B. The District Court’s Decision At trial in the Western District Court of Texas,174 the petitioners’ primary charge175 against Texas’s program was its failure to advance a compelling state interest: [Texas’s] diversity goals are ‘open-ended[,]’[] or, in other words, because [Texas] has made no effort to define a percentage of its student body that must be filled by underrepresented minorities in order to achieve critical mass that therefore [Texas’s] use of race is not tied to the educational benefits of a diverse student body. Rather, . . . it reflects a pursuit of racial balancing that reflects [the state of] Texas’ racial demographics.”176 172

See infra note 189.

173

Id. From 1998 to 2007, the number of Hispanic undergraduates rose by 29.3% and the number of African-American undergraduates rose by 32.4%. See Lisa Sandberg, Top 10 Rule Limits UT-Austin, Says School President, HOUSTON CHRONICLE (Mar. 20, 2008), http://www.chron.com/business/article/Top-10-rule-limits-UT-Austin-says-school1791006.php. 174

Fisher II, 645 F. Supp. 2d 587.

175

Among the petitioners’ other arguments were that Texas lacks a compelling interest “because it has already achieved or exceeded ‘critical mass’ through its race-neutral policies, most notably the Top Ten Percent [L]aw.” Id. at 603. In support of their proposition, the petitioners presented several weak arguments in an attempt to establish “critical mass” at twenty percent. See id. at 604–05. After a thinly veiled implication that the petitioners intentionally presented misleading support, the court held that the mere fact that minority enrollment at Texas exceeds twenty percent “does not mean [that Texas] lacks a compelling … interest.” Id. at 605. 176

Id. at 590 (internal quotation marks omitted).

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The court rejected the petitioners’ argument, reasoning that Grutter specifically prohibited Texas from implementing an invalid use of racial balancing or quotas by mandating a specific percentage of its student body be comprised of racial minorities.177 In summation of the compelling interest arguments, the court held that critical mass178 is not a “magic number”: it has never been defined as a specific percentage, and is instead defined by the educational benefits that diversity provides.179 The petitioners also argued that Texas’s program was not narrowly tailored180 for several reasons, most convincingly of which, was the lack of a “logical end point.”181 However, while the Grutter Court required that “raceconscious admissions policies must be limited in time,” it also recognized that “[i]n the context of higher education, the durational requirement can be met by . . . periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.”182 The district court accepted that Texas’s inclusion of an evaluation of the program every five years was sufficient to satisfy the Grutter standard.183 The district court held, in conclusion, that “as long as Grutter remains good law, [Texas’s] current admissions program remains constitutional.”184 C. Constitutional: The Fifth Circuit’s Affirmation The petitioners appealed to the Fifth Circuit in Fisher III.185 The court’s panel opinion186 stated very early that “[t]he ever-increasing number of 177

Id. at 604.

178

AMERICAN HERITAGE DICTIONARY 432 (4th ed. 2000) “Critical mass” is defined as “an amount of level needed for a specific result or action to occur.” In the context used above, the desired result was achieving educational benefits as the result of increased diversity. 179

See id. at 607.

180

See id. at 609–12. Three of the petitioners’ four arguments were weak and quickly rejected by the court. 181

Id. at 612 (internal citation omitted).

182

Grutter, 539 U.S. at 342.

183

Fisher II, 645 F. Supp. 2d at 612.

184

Id. at 613.

185

Fisher III, 631 F.3d 213, 216–17 (5th Cir. 2011).

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minorities gaining admission under this Top Ten Percent Law casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like admissions program.”187 Nonetheless, the court affirmed the constitutionality of Texas’s program.188 The petitioners’ largely repeated their lower court arguments before the Fifth Circuit. First, petitioners argued that Texas’s plan goes beyond diversity for education’s sake and instead pursues a racial composition that mirrors that of the state as a whole, which is unconstitutional “racial balancing.”189 The petitioners point to Texas’s reference to “state population data to justify the adoption of race-conscious admissions measures” as evidence of its true motive of “outright racial balancing.”190 The Fifth Circuit rejected this argument, finding that Texas “gave appropriate attention to those educational benefits [of diversity] identified in Grutter without overstepping any constitutional bounds.”191 186

It seems the respondents were very lucky regarding the Fifth Circuit’s decision. Judge King, one of the three judges on the panel, intimated in a special concurrence that he might have reached different conclusions had the court been fully briefed on the Top Ten Percent Law and its effect on racial diversity. Id. at 247 (King, J, concurring). Judge Emilio Garza, one of the panel’s other members also wrote a special concurrence, which stated “I concur in the majority opinion because, despite my belief that Grutter represents a digression in the course of constitutional law, today's opinion is a faithful, if unfortunate, application of that misstep.” Id. (Garza, J., concurring). 187

Fisher III, 631 F.3d at 216–17.

188

Id. at 217.

189

Id. at 234.

190

Id. at 236. In 1996, the Fifth Circuit struck down the use of a race-conscious admissions policy at the University of Texas’ law school. Hopwood v. Texas, 78 F.3d 932 (1996). In 1997, the Texas legislature responded to Hopwood by enacting the Top Ten Percent Law, under which the number of minorities enrolled at Texas steadily increased. For example, in 1997, the Black and Hispanic enrollment at Texas was 2.7% and 12.6%, respectively. By 2004, Black enrollment rose to 4.5% and Hispanic enrollment rose to 16.9%. Fisher III, 631 F.3d at 224. Despite these positive gains and by relying on Grutter, Texas adopted a policy to include race as one of the factors it considers in admissions beginning in 2005. Id. at 226. 191

Fisher III, 631 F.3d at 236.

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The petitioners next contended that Texas’s incorporation of raceconscious programs did not give adequate consideration to “race-neutral” alternatives it had already implemented through the Top Ten Percent Law.192 The court evaluated that system in context of the Grutter-affirmed goal of diversity, noting that “[w]hile the [Top Ten Percent Law] may have contributed to an increase in overall minority enrollment, those minority students remain clustered in certain programs, limiting the beneficial effects of educational diversity”; the holistic review endorsed in Grutter better addressed those imbalances.193 The petitioners’ last argument was that Texas’s minority enrollment under the combined Top Ten Percent Law and race-conscious programs surpassed a “critical mass,” and that the additional, minimal “increase in diversity achieved through [administration of a] Grutter-like policy does not justify its use of race-conscious measures.”194 The court maintained, however, that “critical mass” is a determination properly left to Texas’s administrators, and that “Grutter pointedly refused to tie the concept of ‘critical mass’ to any fixed number.”195 However, the court seemingly left the door open for the argument to be raised again in the future: None of this is to say that Grutter left “critical mass” without objective meaning. Rather, the legally cognizable interest— attaining a critical mass of underrepresented minority students—“is defined by reference to the educational benefits that diversity is designed to produce.” If a plaintiff produces evidence that calls into question a university's good faith pursuit of those educational benefits, its race-conscious admissions policies may be found unconstitutional.196

192

Id. at 234; see also supra note 173.

193

See Fisher III, 631 F.3d at 240.

194

Id. at 234.

195

See id at 243–44.

196

Id. at 245 (internal citations omitted).

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Moreover, the court added that “[Texas’s] claim that it has not yet achieved critical mass is less convincing when viewed against the backdrop of the Top Ten Percent Law, which had already driven aggregate minority enrollment up to more than one-fifth of the University's incoming freshman class.”197 The court also rejected the petitioners’ alternate argument that even if Texas had not yet achieved critical mass, “it had come close enough that the reintroduction of race-conscious measures was unwarranted.”198 Relying on Parents Involved, the petitioners argued that the “minimal effect,” of Texas’s race-conscious measures rendered them invalid.199 The Fifth Circuit believed, however, that the Parents Involved Court referred to the challenged policies’ “minimal effect” merely “as evidence that other, more narrowly tailored means would be effective to serve the school districts’ interests.”200 Perhaps most relevant to this Article’s purpose, the court stated that “Justice Kennedy—who provided the fifth vote in Parents Involved—wrote separately to clarify that ‘a more nuanced, individual evaluation . . . informed by Grutter’ would be permissible, even for the small gains sought by the school districts.”201 D. Unconstitutional: The En Banc Dissent After the Fifth Circuit’s panel affirmed the District Court’s judgment, Fisher and Michalewicz petitioned for rehearing en banc; with a narrow 9–7

197

Id.

198

Id. at 246.

199

Fisher III, 631 F.3d at 246. The district court thought this argument was an attempt “to force [Texas] into an impossible catch–22: on the one hand, it is well-established that to be narrowly tailored the means ‘must be specifically and narrowly framed to accomplish’ the compelling interest, but on the other hand, according to [petitioners], the ‘narrowly tailored’ plan must have more than a minimal effect.” Fisher II, 645 F. Supp. 2d 587, 609 (W.D. Tex. 2009) (internal citation omitted). 200 201

Fisher III, 631 F.3d at 246.

Id. (quoting Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 790 (2007) (Kennedy, J., concurring)).

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majority, the Fifth Circuit denied the petition in Fisher IV.202 In an uncommon move, five of the seven judges who voted to rehear the case wrote a lengthy dissent, which clearly expressed several reasons why they felt the challenged program was unconstitutional.203 The dissent believed that the panel in Fisher III misapplied the strict scrutiny standard of review and “supplant[ed] strict scrutiny with total deference to [Texas’s] administrators.”204 More importantly ⎯ and indicative of what will likely be the crux of Fisher V ⎯ the dissent questioned “whether a race-conscious admissions policy adopted [in conjunction with the Top Ten Percent Law] is narrowly tailored to achieve [Texas’s] goal of increasing ‘diversity.’”205 The dissent concluded that the plan upheld in Grutter was distinguishable from Texas’s plan; in Grutter, “the consideration of race was viewed as indispensable in more than tripling minority representation at [Michigan Law].”206 Under Texas’s plan, however: The additional diversity contribution of the [Texas’s] raceconscious admissions program is tiny, and far from “indispensable.” It is one thing for the panel to accept “diversity” and achieving a “critical mass” of preferred minority students as acceptable University goals. It is quite another to approve gratuitous racial preferences when a raceneutral policy has resulted in over one-fifth of University entrants being African–American or Hispanic.207 VI. PREDICTING THE OUTCOME There are a number of dynamics that will influence the Supreme Court’s ultimate decision on the fate of Texas’s AAE program. Will one of the Court’s conservative Justices go rogue, citing stare decisis? Will one of the 202

644 F.3d 301 (5th Cir. 2011) (en banc) (per curiam), aff’g 631 F.3d 213 (5th Cir. 2011).

203

See id. at 303–08 (Jones, C.J., dissenting).

204

Id. at 305.

205

Id. at 306–07.

206

Id. at 307 (quoting Parent Involved, 551 U.S. at 704).

207

Id. at 307.

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Court’s liberal Justices break rank and find that the Equal Protection Clause “creep” has gone too far? How will the Court’s newest Justices rule? If the Court reverses Fisher III, will it merely find that Texas’s AAE program is unconstitutional, or will it go further and reverse Grutter? In what direction will Justice Kennedy’s swing vote turn? This Part will evaluate past opinions and political concerns that have the potential to influence the future of AAE programs. A. The “‘Unconstitutional’ Bloc” Based on their holdings in previous AAE cases, four Justices will, in all likelihood, vote to reverse Fisher III and find Texas’s AAE program unconstitutional: Chief Justice Roberts and Justices Alito, Scalia, and Thomas. Of these four, three will also likely opine that Grutter should be reversed altogether. The probable conclusions of each will henceforth be addressed in turn, according to the likelihood that they will reverse the Fifth Circuit’s decision. The Justices most likely to vote to reverse both Fisher III and Grutter are Justices Clarence Thomas and Antonin Scalia.208 Justice Thomas has a long history of ardently opposing AAE programs.209 For example, in Grutter, Justice Thomas wrote a separate opinion in which he stated his belief that AAE programs violate the Equal Protection Clause.210 Justice Scalia will also likely vote to reverse both Fisher III and Grutter. In Grutter, Justice Scalia wrote a separate opinion in which he stated, “[Michigan Law’s] mystical “critical mass” justification for its discrimination by race challenges even the 208

Thomas and Scalia vote together in 92% of cases, the highest ratio among the Court. SCOTUSblog Final Stats 0t09-7.7.10, SCOTUSBLOG (July 7, 2010), http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Charts-070710-JA.pdf. 209

See, e.g., Parents Involved, 551 U.S. at 748 (Thomas, J., concurring) (holding that “state entities may not experiment with race-based means to achieve ends they deem socially desirable”); Gratz, 539 U.S. at 281 (2003) (Thomas, J., concurring) (holding that “a State's use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause”). 210

Grutter, 539 U.S. at 351 (2003) (Thomas, J., dissenting).

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most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.”211 Moreover, Justice Scalia believed that the “educational benefit” of “cross-racial understanding” is not an “educational benefit” at all.212 He reasoned: [I]t is a lesson of life rather than law-essentially the same lesson taught to (or rather learned by, for it cannot be “taught” in the usual sense) people three feet shorter and 20 years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an “educational benefit” at all, it is surely not one that is either uniquely relevant to law school or uniquely “teachable” in a formal educational setting.213 Chief Justice Roberts and Justice Alito, although recent additions to the Court, are anticipated to vote to reverse Fisher III, and the Chief Justice will also likely find that Grutter should be reversed. Roberts and Alito were both in the Parents Involved majority. Roberts’ general disdain for race-based classifications manifests itself in his majority opinion for the Parents Involved case which boldly states: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”214 However, it is worth noting that in the past, Roberts has at times been willing to vote in a manner inconsistent with what might be expected of him in a politically-charged matter.215 Justice Alito, although likely to reverse Fisher III, will probably not go as far as to reverse Grutter; Alito has previously espoused his respect for the doctrine of stare decisis.216 211

Id. at 346–47 (Scalia, J., dissenting).

212

Id. at 347-48.

213

Id. at 347.

214

Parents Involved, 551 U.S. at 748.

215

See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566 (2012). Roberts shocked pundits by upholding the Patient Protection and Affordable Care Act. 216

See Confirmation Hearing on the Nomination of Samuel A. Alito, Jr., To Be An Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 318-19 (2006) (statement of Judge Samuel Alito). During his

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B. The “Affirmation Alliance” There are two Justices that will almost undoubtedly vote to affirm Fisher III. Justices Breyer and Ginsburg each have a long history of supporting AAE programs.217 Furthermore, each has also supported an AAE program that no reasonable mind could find is as narrowly tailored as the one at issue in Fisher V.218 Justice Ginsburg will almost certainly vote to affirm Fisher III. In Gratz, Justice Ginsburg wrote a dissenting opinion in which she gave AAE programs wide latitude by stating that “government decision makers may properly distinguish between policies of exclusion and inclusion.”219 Justice Ginsburg went on to say “the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.” 220 Moreover, Justice Ginsburg joined Justice Breyer’s dissent in Parents Involved.221 Justice Breyer, also, will likely affirm Fisher III. Justice Breyer wrote a voluminous dissent in Parents Involved, which asserted that the law has “consistently and unequivocally approved of . . . race-conscious measures to combat segregated schools. The Equal Protection Clause . . . has always confirmation hearings, Alito stated in response to a question regarding stare decisis from Chairman Arlen Specter that, “in every case in which there is a prior precedent, the first issue is the issue of stare decisis, and the presumption is that the Court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.” Id. at 319. 217

Compare Parents Involved, 551 U.S. 701, 803 (2007) (Breyer, J., dissenting), and Gratz v. Bollinger, 539 U.S. 244, 298 (2003) (Ginsburg, J., dissenting), with Grutter v. Bollinger, 539 U.S. 306, 344-46 (2003) (Ginsburg, J., concurring). 218

See generally Grutter, 539 U.S. 306 (2003). In Grutter, both Breyer and Ginsburg upheld Michigan’s admissions policy, which used race as a predominant factor. 219

Gratz, 539 U.S. at 301 (Ginsburg, J., dissenting).

220

Id. at 302 (citing United States v. Jefferson Cnty. Bd. of Ed., 372 F.2d 836, 876 (5th Cir. 1966)). 221

Parents Involved, 551 U.S.at 803 (Breyer, J., dissenting).

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distinguished in practice between state action that excludes and thereby subordinates racial minorities and state action that seeks to bring together people of all races.”222 Justice Breyer also joined the majority and Justice Ginsburg’s concurrence in Grutter.223 C. The New Justices’ Association Since its decision in Parents Involved, the Supreme Court has welcomed two new members. On August 6, 2009, Sonia Sotomayor was confirmed to the Court to replace Justice Souter, and on August 5, 2010, Elena Kagan was confirmed to replace Justice Stevens.224 Although neither has participated in a Supreme Court case on point, one can draw insight into their potential conclusions from a variety of sources. It is exceedingly likely that Justice Sotomayor will affirm Fisher III;225 the clearest evidence comes from the fact that Justice Sotomayor has voted with both Justices Ginsburg and Breyer in ninety percent of the Court’s decisions.226 The most notable affirmative-action-related case in which Justice Sotomayor participated prior to joining the Court was Ricci v. DeStafano.227 In this Second Circuit panel decision eventually reversed by the Supreme Court, Justice Sotomayor voted to allow the City of New Haven to discard the results of a test it had given to firefighters because the City believed the test

222

Id. at 864.

223

Grutter, 539 U.S. 306.

224

S. 9063, 111th Cong. § 82 (2009); S. 6991, 111th Cong. § 140 (2010).

225

Although the author finds little relevance in the following, Justice Sotomayor was heavily criticized during her confirmation hearings because of some past comments she made regarding race. The most publicized of these comments occurred during a 2001 lecture at Boalt Hall, during which Sotomayor said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” Symposium, Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation, 13 LA RAZA L.J. 1 (2002). 226

SCOTUSblog Final Stats 0t09-7.7.10, SCOTUSBLOG (July 7, 2010), http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Charts-070710-JA.pdf. 227

264 F. App’x 106 (2d Cir. 2008), rev’d, 557 U.S. 557 (2009).

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had a disparate impact on minority firefighters.228 Justice Sotomayor’s ruling indicates that she finds affirmative action programs generally constitutional. Justice Kagan recused herself from Fisher V. Although she did not announce her motive for doing so, many speculate that it was her tenure as Solicitor General during the time the Justice Department filed an amicus brief in the Fifth Circuit in support of Texas’s program—the same program that will be before the Court in Fisher V.229 Kagan’s recusal is important for two reasons. First, because she is the former dean of Harvard Law School, she is likely the only member of the Court with practical experience regarding the use of affirmative action admissions policies. Second, because one could reasonably assume that she would be inclined to uphold Texas’s policy, the prospect of that program being upheld is even more tenuous. D. The Kennedy Swing A scholarly survey of the past twenty years of Supreme Court jurisprudence would point to Justice Kennedy as the traditional “swing vote.” However, given his nuanced views in the Court’s previous AAE cases, predicting Kennedy’s vote is not as difficult as scholars might believe. Justice Kennedy’s dissent in Grutter provides a clear roadmap for his likely vote in Fisher V. In his Grutter dissent, Justice Kennedy agreed with the majority that the proper rule by which to analyze AAE programs comes from Bakke in which one of the Court’s holdings was that promoting racial diversity was a compelling governmental interest that can justify an AAE program, so long as it is narrowly tailored.230 His deviation from the Grutter majority centered on 228

Id.

229

See Brief for the United States as Amicus Curiae Supporting Appellees, Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011) (No. 09-50822), 2010 WL 2624787. As Solicitor General, Kagan’s approval was necessary for the brief to be filed. 230

Grutter, 539 U.S. at 387 (2003) (Kennedy, J., dissenting). [A] university admissions program may take account of race . . . [if] the program can meet the test of strict scrutiny by the judiciary. This is a unitary formulation. If strict scrutiny is abandoned or manipulated . . . , the

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Michigan Law’s failure to narrowly tailor the AAE program, given the attention paid to the “daily reports,” which provided constant updates on the number of accepted minority applicants.231 Given the fact-intensive nature of Fisher V, Kennedy will likely find that Texas’s holistic review, which includes an applicant’s race,232 is valid. Justice Kennedy’s primary concern for constitutionality seems to be giving each applicant an individual review, within the institution’s discretion, that takes into account all of the many ways the applicant can contribute to the school’s diversity.233 However, Justice Kennedy may find that when used in conjunction with the Top Ten Percent Law, the subsequent consideration of race is invalid. There is solid factual support that Top Ten Percent Law was increasing the diversity of Texas.234 The Top Ten Percent Law increased Texas’s diversity by relying on the state’s de facto racial segregation. In other words, if the state’s racial demographics were homogenous throughout its territory, the law probably would not have made the same advances in Texas’s racial diversity. Based on those facts, Justice Kennedy could find that, because of the de facto racial segregation in the state and its corresponding effect on high school demographics, the Top Ten Percent Law functions perfectly as a race-neutral means by which Texas increased enrollment of underrepresented minorities. VII. CONCLUSION A tabulation of the most plausible outcome of the Justices’ votes in Fisher V would produce a 5–3 opinion, written by Justice Kennedy,235 Court lacks authority to approve the use of race . . . [and] undermines both the test and its own controlling precedents. Id. See Bakke, 438 U.S. 265 (1978). 231

Id. at 392 (“The daily consideration of racial breakdown of admitted students is not a feature of affirmative-action programs used by other institutions of higher learning.”). 232

See Fisher I, 556 F. Supp. 2d 603, 606 (W.D. Tex. 2008).

233

See Grutter, 539 U.S. at 387 (Kennedy, J., dissenting).

234

See supra note 173.

235

Chief Justice Roberts will likely assign the opinion to Kennedy to avoid losing him during circulation of the draft opinions.

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invalidating Texas’s program because of the contemporaneous statutory requirements of the Top Ten Percent Law. Justice Kennedy’s opinion will, however, reaffirm that the AAE program advocated in Grutter—narrowly tailored to serve a compelling interest—remains valid. Chief Justice Roberts and Justices Thomas, Scalia, and Alito will join in the portion of Kennedy’s opinion regarding the invalidity of Texas’s AAE program and join in a separate opinion holding that race-conscious admissions programs are never valid.236 Justices Ginsburg, Breyer, and Sotomayor will almost certainly dissent. Whether these three Justices rely on stare decisis or their genuine beliefs, they will find that Texas’s program is in conformity with the type of program recognized as permissible in Grutter. Therefore, these three Justices will vote to affirm Fisher III and will thereby recognize the continuing validity of Grutter. The most likely result of Fisher V is that Texas’s program will be found invalid, but that the overall validity of AAE programs will be upheld.237 Ultimately, it is unlikely that the Court’s opinion in Fisher V will have a dramatic effect on AAE programs; if a particular program is modeled after the Michigan program, then its continued use will be valid. Finally, even if the Court holds that any consideration of race in admissions decisions is invalid, a university’s race-neutral consideration of socio-economic factors will perpetuate the current status quo due to the correlation between race and economics throughout large areas in the United States.

236

That opinion will not receive a majority of votes and will therefore have scant precedential value. 237

The author’s final prediction is as follows: five Justices (Kennedy, Alito, Thomas, Roberts, and Scalia) will find Texas’ program invalid; four Justices (Alito, Thomas, Roberts, and Scalia) will concur in part and dissent in part, finding AAE programs unconstitutional; three Justices (Breyer, Ginsburg, and Sotomayor) will dissent, finding both that Texas’ program is valid and that AAE programs are constitutional.

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A SPECTATOR SPORT WITHOUT SPECTATORS: DISCRIMINATION IN GIRLS’ ATHLETICS Parker v. Franklin County Cmty. Sch. Corp., 667 F.3d 910 (7th Cir. 2012) Erika Denslow I.

INTRODUCTION

In Parker v. Franklin County Cmty, Sch. Corp.,1 plaintiff Amber Parker (“Parker”) brought an action on behalf of her minor daughter, J.L.P., against fourteen Indiana public school corporations, alleging discriminatory practices in the scheduling of high school basketball games. She alleged violations of Title IX of the Education Amendments and the Equal Protection Clause of the Fourteenth Amendment. Among the defendants were Franklin County Community School Corp. (“Franklin Corp.”) and the school districts with contracts to play the Franklin County High School (“Franklin”) girls’ varsity basketball team during the 2009-2010 season. The defendants moved for summary judgment on Parker’s claims, and she responded with a crossmotion for summary judgment. Before the district court ruled, Tammy Hurley, also on behalf of her minor daughter, C.H., joined as a plaintiff in each of the claims.2 The district court granted summary judgment for the defendants. The Seventh Circuit reviewed the district court’s decision de novo. II.

FACTUAL BACKGROUND

From 2007 to 2009, Parker served as head coach to Franklin (part of Franklin Corp.) varsity girls’ basketball team. Her daughter, J.L.P. was a member of the team during the 2008-2009 season.

1 2

667 F.3d 910 (7th Cir. 2012).

Tammy Hurley (“Hurley”)’s daughter, C.H. was also a member of the girls’ varsity basketball team. Hurley filed a suit identical to Parker’s, and then was added as a plaintiff in this suit. Id. at 914.

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The girls’ varsity basketball team began its season two weeks before the boys’, during which time the girls play on primetime3 weekend nights. When the boys’ season began, they displaced the girls’ primetime play, moving the girls to weeknights. Weeknight games have many disadvantages: drastically fewer spectators attend; neither the band, cheerleaders, nor the dance team perform; and the players must contend with the next day’s homework as well as their basketball schedule. J.L.P. attested that her selfesteem also suffered because of the disparate scheduling practices “made her feel like girls’ accomplishments are less important than boys’.”4 In the 20072009 seasons, ninety-five percent of the boys’ games were primetime, compared to only forty-seven percent of the girls’.5 During the 2009-2010 season, those numbers were ninety-five percent and fifty-three percent respectively.6 In 2007, Parker asked Franklin Athletic Director Beth Foster (“Foster”) to balance the amount of primetime playing time that each team received. Foster replied that the scheduling and location of basketball games were set by contract7 and maintained in subsequent years. Foster stated that she has tried to increase the girls’ games played on primetime nights, but has experienced opposition from other athletic directors. III. A.

RATIONALE Title IX Claim

The plaintiffs filed suit alleging discriminatory athletic scheduling practices in violation of Title IX. Title IX prohibits “discrimination on the 3

“Primetime is defined as evening that precede days without school.” Id. On primetime nights, “there are large crowds in attendance … substantial student and community support in the stands, and the presence of the band, cheerleaders, and dance teams.” Id. 4

Id.

Of the school defendants named by Parker, six of them are part of the Eastern Indiana Athletic Conference (EIAC). “The EIAC makes its decisions by majority rule and voted to enter into two- to four-year contracts for the scheduling of games. Franklin pays the nonconference schools once a season, and they alternate annually between home and away.” Id.

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basis of gender by educational institutions receiving federal financial assistance.”8 Under regulations published by the Department of Health, Education, and Welfare (“HEW”), the recipient of federal funding, such as the school corporations in this case, “shall provide equal athletic opportunity for members of both sexes.”9 Though an administrative enforcement scheme exists within Title IX, the Supreme Court has recognized an implied right of action for intentional discrimination pursuant to § 1681,10 and claimants need not exhaust administrative remedies prior to bringing a private action.11 More specifically, the plaintiffs in this action are eligible to receive money damages in addition to injunctive relief, due to the school corporations’ advance notice of their potential liability for their alleged conduct.12 Most litigation under Title IX focuses on “accommodation” claims, wherein plaintiffs protest the unavailability of an athletic program that meets the “interests and abilities of the underrepresented sex.”13 However, Title IX also authorizes equal treatment claims that “allege sex-based differences in the schedules, equipment, coaching and other factors affecting participants in athletics.”14 Under Title IX, athletic programs for each sex must be “equal or equal in effect.”15 Among the factors considered to evaluate equal treatment are “the scheduling of games and practice times and[,] particularly, the day 8

“Subject to exceptions not pertinent here, Title IX provides that ‘no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’” Id. at 917 (citing 20 U.S.C. § 1681(a)). 9

Id. at 918 (citing 34 C.F.R. § 106.41(a)).

Id. at 919 (citing Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979)).

Id.; see Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 247 (2009).

“[F]unding receipts have been on notice that they could be subjected to private suits for intentional sex discrimination under Title IX since 1979, when [the Court] decided Cannon.” Id. at 921 (citing Jackson v. Birmingham Bd. of Edu., 544 U.S. 167, 168 (2005)). 13

Id. at 916.

Id. at 918 (citing Mansorian v. Regents Univ. of Cal., 602 F.3d 957, 965 (9th Cir. 2010).

Id. at 919 (citing Title IX and Intercollegiate Athletics, 44 Fed. Reg. at 71,415 (Dec. 11, 1979) (to be codified at 45 C.F.R. pt. 86)).

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competitive events are scheduled.16 If the programs are inequitable, HEW may still deem them compliant if the disparities are the result of nondiscriminatory factors. Disparities present in benefits, treatment, services, or opportunities must be “substantial enough in and of themselves to deny equality of athletic opportunity.’”17 In the present case, the court employed a two-step analysis of the plaintiff’s claim, determining first whether Franklin’s scheduling practices caused a negative impact on one sex, and second, whether the disparity was substantial enough to deny equality of athletic opportunity, which, it asserted, “includes equivalent opportunity to compete before audiences.”18 The court found that the disparity in scheduling practices at Franklin was “systemic.”19 It referenced a 1997 letter from the Office of Civil Rights (“OCR”) to the Indiana High School Athletic Association that was also distributed to Franklin. The letter addresses OCR’s concerns about scheduling practices of high school basketball games in Indiana, and states that schools “‘could be found by OCR to be out of compliance with the scheduling of games and practice times component of the athletic provisions of Title IX if they reserve Friday nights for boys basketball games and schedule girls basketball games on other nights.’”20 Despite receiving this letter fourteen years before this suit, Franklin did not alter its practices. The court asserted that a trier of fact could determine that the disparity was substantial enough to deny equal athletic opportunity. The court agreed with the plaintiffs that the girls on the basketball team (loss of audience and feelings of inferiority) suffered significant harm that could dissuade girls from participating in athletics, which contravenes the aim of Title IX. As the court stated, “this disparate scheduling creates a cyclical effect that stifles community support, prevents the development of a

Id. (citing Title IX and Intercollegiate Athletics, 44 Fed. Reg. at 71,416).

Id. (citing Title IX and Intercollegiate Athletics, 44 Fed. Reg. at 71,415).

Id. at 922.

Id.

Id. at 923.

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fan base, and discourages females from participating in a traditionally maledominated sport.”21 Viewing the harm suffered by the Franklin girls’ basketball team, the court concluded that “the plaintiffs . . . presented sufficient evidence for trial to determine whether the disparity and resulting harm in this case are substantial enough to deny equal athletic opportunity”22 and vacated the district court’s grant of summary judgment. The court also approved the inclusion of the non-Franklin school districts as defendants, as they were complicit in the subordinated scheduling. The court directed them to comply with injunction issued,”23 but exempted them from liability for monetary damages because the plaintiff’s argument “focuses on the harm suffered as a result of Franklins overall disparate scheduling practices,”24 not those of the other defendants. B.

Equal Protection Claim

The plaintiffs also asserted a claim under 42 U.S.C. § 1983 for violation of the Equal Protection Clause.25 An action under § 1983 “requires a showing that the plaintiff was deprived of a right secured by the Constitution or federal law, by a person acting under color of law.”26 Here, the issue before the court was whether the defendants are “persons” within the meaning of § 1983, and therefore subject to suit. The U.S. Supreme Court has defined “municipal corporations and similar governmental entities”27 as persons within the scope of the statute. In Will v. Mich. Dep’t of State Police28 the Supreme Court stated that “units of 21

Id. at 923-24.

Id. at 924.

“The non-Franklin defendants must comply with an injunction that is issued in this case; otherwise the plaintiffs are left without an effective remedy.” Id. at 924. 24 25

Id. at 925. U.S. CONST. amend. XIV, § 1.

Parker, 667 F.3d at 925 (citing Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir. 2011).

Id. at 926 (citing Howlett v. Rose, 496 U.S. 356, 376 (1990)).

491 U.S. 58 (1989).

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local government are ‘persons[,]’”29 and thus persons for purposes of § 1983 liability. The defendants argue however, that they are not independent political subdivisions, but rather, “arms of the state,” which cannot be held liable.30 The Supreme Court has set forth four relevant factors to determine whether an entity is merely an arm of the state: “(1) the characterization of the district under state law; (2) the guidance and control exercised by the state over the local school board; (3) the degree of state funding received by the district; and (4) the local board’s ability to issue bonds and levy taxes on its own behalf.”31 The court characterized school corporations as localized entities under state law – that is, independent political subdivisions with locally elected members that serve their local communities and not the state as a whole. The defendants, appealing to the court to reconsider a prior decision that local school districts are not a State,32 contended that the state of Indiana’s increased its overall guidance and control over the local school district with the passage of a 2008 educational oversight law.33 It reasoned, instead, that the “most salient factor”34 in determining control is who would be legally obligated to pay a judgment, if rendered. In this case, it was the defendants, not the State of Indiana. While local school corporations do receive a significant amount of funding from the state, they are legally obligated to pay their own judgments and can levy property taxes or issue bonds for such purposes. Accordingly, the court concluded that the defendants’ are persons within the scope of § 1983.

Parker, 667 F.3d at 926 (citing Will, 491 U.S. at 70).

Id.

Id. at 927 (citing Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).

Id. (referencing Gary A. v. New Trier High Sch. Dist. No. 203, 796 F.2d 940, 945 (7th Cir. 1986). 33

Through Public Law 146-2008, House Enrolled Act 1001, § 450-529 (amending Education Title), the legislature made significant amendments to its complex statutory and regulatory scheme governing the financial structure of its local school corporations and the level of state control and oversight over the decisions and activities of those school corporations.” Id. 34

Parker, 667 F.3d at 927.

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Because the district court found that the defendants were not subject to suit under § 1983, it granted summary judgment without addressing the substance of the plaintiff’s equal protection claims. The Seventh Circuit vacated the entry of summary judgment and remanded the equal protection claims for the district court’s consideration. IV.

CONCLUSION

While Title IX has increased the number of female high school athletes and garnered status and respect for them, it “has not ended the long history of discrimination against females in sports programs; many educational institutions continue to place male sports programs in a position of superiority.”35 However, the outcome of this case on remand could change one manner in which schools and athletic conferences advantage male sports programs, by changing the way they schedule games. In Parker, the Seventh Circuit acknowledged that a claim for sex discrimination exists in the disparate scheduling practices of Franklin Corp. and its co-defendants. Through this decision, the court has made an important step towards making the promises of Title IX a reality for female athletes.

Id. at 916.

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IMMIGRATION OBSTACLES AND THE SIXTH CIRCUIT COURT'S HARSH INTERPRETATION OF LEGAL PERMANENT RESIDENT STATUS Lateef v. Holder, 683 F.3d 275 (6th Cir. 2012) Justin Boitnott I.

INTRODUCTION

Lateef v. Holder addressed the nature of a Legal Permanent Resident's (“LPR”) trips outside of the United States and at what point an LPR's actions are such that the individual effectively abandons their LPR status. The plaintiff, Humaira Khalid Lateef, was a Pakistani citizen who had acquired LPR status in 1991 but later married a Pakistani man who did not possess an entry visa. Although Lateef made recurrent trips back to the United States, she began to spend the majority of her time back in Pakistan along with her husband and her newborn daughter. By February of 2011 the plaintiff's husband had obtained an immigrant visa, and traveling under the assumption that her LPR status remained valid, Lateef's family attempted entry into the United States. The family was denied entry, however, due to Lateef’s alleged abandonment of LPR status and was charged with attempted entry into the United States without valid documentation.1 Furthermore, Lateef was charged with “misrepresenting a material fact to enter the U.S,”2 and the husband was charged with “attempting to enter the U.S. to work without certification from the Department of Labor.”3

In violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I).

In violation of 8 U.S.C. § 1182(a)(6)(C)(i).

In violation of 8 U.S.C. § 1182 (a)(5)(A).

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FACTUAL BACKGROUND

Humaira Lateef acquired her LPR status along with her siblings and parents when her family moved to the United States in June 1991. She traveled back to Pakistan in August of 1991 and remained there for two years in order to complete her final classes of medical school. Upon completion of her medical education, she returned to the United States with a valid reentry permit and remained in the country for two years. In 1995, she married a Pakistani man and began spending most of her time back in Pakistan. In March 1996, she traveled to the U.S. to complete the first part of a two-part American medical licensing exam. At this point, her husband applied for a U.S. entry visa, which the couple believed would soon be granted. After completing part one of the exam, she returned to her husband in Pakistan after spending five months apart from him. Shortly thereafter, she became pregnant with her daughter and remained in Pakistan for over a year under the advice of her physician who cautioned her not to fly during her pregnancy. In August 1997, Lateef returned to the U.S. along with her newborn daughter who was granted LPR status as â&#x20AC;&#x153;a child born during [a] temporary visit abroad.â&#x20AC;?4 While in the U.S., Lateef retook the second part of the medical exam after failing her first attempt. She also attempted to apply for naturalization but withdrew her application after learning she had not remained in the U.S. long enough for the requisite period. After six months, Lateef and her daughter returned to Pakistan, but Lateef journeyed back to the U.S. after three months in order to apply for medical residency positions. Her trip was cut short because her daughter, who had remained in Pakistan, was having emotional issues due to Lateef's absence. After only thirteen days of job searching in the United States, Lateef returned to Pakistan. She remained there for over six months in order to plan her brother's wedding, but returned to the U.S. in January 1999 to take her naturalization exam. After twenty days in the U.S. she traveled back to Pakistan and stayed there until October of 1999 when she returned to the U.S. in hopes of receiving job interviews. After two weeks, she was forced to return yet again to Pakistan over her husband's concern regarding their daughter's continuing behavioral issues. There she remained for twelve 4

8 C.F.R. Â§ 211.1(b)(1).

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months until her husband and newborn son were finally granted immigration visas in November of 2000. Three months later, the entire family traveled to the United States. Lateef had been gone from the U.S. for fifteen months, and realizing that her extended absence had threatened her LPR status, she lied to the immigration officer, telling him that she had been gone only seven months. Since her passport did not support her story, the family was taken to secondary inspection, during which time Lateef yet again changed her story. Immigration officials searched the family's luggage and found the records, which correctly showed that Lateef had been absent from the U.S. since November 1999. In total, Lateef had made seven trips between Pakistan and the U.S. and had spent only thirty-five percent of her time in the United States. In June 2001, removal proceedings began against the family. The Immigration Judge (“IJ”) ordered the family's removal from the U.S. after determining Lateef had abandoned her status as an LPR, which subsequently nullified her husband and son's visas and her daughter's LPR status. Upon appeal, the Board of Immigration Appeals (“BIA”) affirmed the IJ's order and the case went to the Sixth Circuit Court, which remanded it back to the BIA. The BIA in turn vacated its original decision and remanded the case back to the IJ. In 2008, the IJ sustained the original order and on appeal, the case eventually worked its way back up to the Sixth Circuit Court. A total of eleven years elapsed from the moment of the family's attempted entry into the United States to the time the Sixth Circuit ruled on their case. III. A.

RATIONALE Majority Opinion

Both the majority and the dissent in the Sixth Circuit Court's decision relied heavily on the circuit's case precedent. Only two prior published cases within the Sixth Circuit had dealt with the issue of an LPR's extended absence. Hana v. Gonzales5 ruled that a woman who made two lengthy trips back to Iraq as an LPR had not abandoned her status, but Karimijanaki v. 5

400 F.3d 472 (6th Cir. 2005).

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Holder6 ruled that a woman who made lengthy trips to Iran had indeed abandoned her LPR status. Only the facts specific to each case differentiated their outcome. The Sixth Circuit judges looked to determine whether the BIA had made reversible error when it determined that Lateef's LPR status had been abandoned. Under federal immigration law, an LPR may only lose their status if they abandon their status or remain outside of the U.S. for more than 180 days.7 An exception to the 180-day rule is provided only if the event was caused by “reasons beyond the alien's control and for which the alien was not responsible.”8 If an LPR loses their status, the consequences may be severe for the entire family. Any immigration visas obtained for family members by an LPR are revoked if that LPR loses their status.9 Additionally, if an emancipated child becomes an LPR due to their parent's LPR status but that parent loses their LPR status, the child immediately loses their status as well.10 In effect, the judges’ consideration regarding Lateef’s LPR status determined the future of the entire Lateef family. The two judges in the majority determined that Lateef had indeed abandoned her LPR status, particularly on her final stay in Pakistan, which lasted fifteen months. This, they pointed out, was well over 180 days and did not occur due to reasons beyond Lateef's control. The court differentiated Lateef's case from that of the petitioner in Hana who retained her LPR status despite leaving the United States and remaining in Iraq for over two years. There, the long departure was due only to the petitioner's forced coercion to return to her native country of Iraq by threats against her family from Saddam Hussein's regime. The Sixth Circuit emphasized that not only was such a lengthy departure due to reasons beyond 6

579 F.3d 710 (6th Cir. 2009).

8 U.S.C.S. § (a)(13)(C)(i) & (ii).

22 C.F.R. § 42.22 (a)(3).

8 C.F.R. § 1205.1(a)(3)(i)(J).

Karimijanaki, 579 F.3d at 719.

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the plaintiff's control, but the plaintiff had transferred $10,000 to the United States and had made numerous attempts to leave Iraq but was prevented from doing so. Once safely in the United States, Hana believed that her visa would no longer expire, and so made one final trip back to Iraq to care for her dying mother-in-law. It was at the return from this three-month trip that immigration authorities denied Hana reentry. The Sixth Circuit reversed that decision, however, and ruled that “[I]t is clear that [Hana's] failure to put down roots in the [United States] was due almost entirely to her desire to help her loved ones safely flee a brutal totalitarian regime and to her obligation to assist in the care of her terminally ill mother-in-law.”11 The court also gave weight to her transfer of $10,000 as evidence that she intended to permanently move to the United States. In contrast, the Lateef court found only one similarity between petitioners Hana and Lateef. Like Hana, Lateef believed that her family would immigrate along with her within a short time. However, the court found that unlike Hana, Lateef “made no attempt to comply with the law to maintain her LPR status,” she lied to immigration agents, she lived in a country that was not suffering under a brutal dictatorship, her daughter did not possess any medical problems, and “Lateef did not transfer assets to the U.S. to facilitate her family's emigration to a new life.”12 The majority concluded that Hana's trips were driven due to safety concerns while Lateef's lengthy trips were driven by “convenience.” 13 Thus, the IJ's decision was upheld, Lateef's LPR status was revoked, and the family was sent back to Pakistan. B.

Dissenting Opinion

In her lone dissent, Judge Stranch concluded Lateef's LPR status should have been retained since her extended periods of absence from the country were just as legitimate as those in Hana. Stranch suggested that the Hana court developed four reasons that legitimized Hana's lengthy departure from the United States: (1) she was led to believe that visas would be given to her family within a short time, (2) she made every effort to comply with the 11

Hana, 400 F.3d at 476.

Lateef, 683 F.3d at 282.

Id.

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law, (3) she only returned to Iraq to protect her family and care for her dying mother-in-law, and (4) she took multiple steps toward living permanently in America, including the transfer of $10,000 of her assets.14 Comparing Lateef to Hana, Judge Stranch concluded that Lateef met the four factors, and that compared to Karimijanaki, which had upheld a denial of LPR status, Lateef's absences from the U.S. were legitimate. First, Lateef believed that her family would receive travel visas very shortly, and so she traveled to Pakistan in order to aid them, just as Hana traveled back to Iraq for three months to aid her family's preparations. Judge Stranch rejected the majority's adoption of Moin v. Ashcroft15 from the Firth Circuit and urged adoption of the Sixth Circuit's own decision in Hana which permitted an LPR to travel back to their family while waiting for visas. Indeed, the standard in Moin was quite harsh: “We appreciate the predicament which confronts immigrants who marry non-citizens abroad. Because temporary visas are often unavailable and processing marital visas may take years, they must choose to live apart or risk losing their permanent resident status.”16 Lateef returned to be with her family under the assumption that their visas would soon be provided. Second, Judge Stranch argued that the majority was wrong to read Hana as requiring an LPR to obtain re-entry permits. She did not see this as a “dispositive factor” and points to Lateef's other actions as evidence of her willingness to settle permanently in the United States. As an example, she pointed to the Lateef family's first effort in 1996 to obtain a temporary visa for the husband. His request was denied for the sole reason that he was classified as an “intending immigrant,” meaning that his wife's status and their future intention to permanently settle in the U.S. disqualified him for a temporary visa. Judge Stranch remarked, “It is indisputably contradictory and, to my mind, a patent unfairness to first deny admission on the basis that Lateef and her husband intended to live in America and then, after they waited patiently to receive the proper immigrant visas, deny 14

Id. at 284.

Moin v. Ashcroft, 335 F.3d 415, 421 (5th Cir. 2003).

Id.

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admission again on the basis that they lacked the intent to live in America during that time.”17 Third, Judge Stranch found marked similarities between Lateef's concern for her daughter's depression and the actions taken by Hana to return to Iraq and care for her dying mother-in-law. Lateef's daughter was going through severe depression in the absence of her mother, a depression that was diagnosed by physicians back in Pakistan. Judge Stranch disagreed with the majority's assessment that the daughter had not physical illness. She concluded that Lateef's daughter was in fact quite ill, and that it was only natural that Lateef feel compelled to put aside her career plans and return to care for her daughter. She argued that this was hardly a reason to believe that Lateef had purposefully abandoned her LPR status simply because she returned to care for her daughter who was exhibiting “significant emotional and physical issues.”18 Fourthly and finally, Lateef did make efforts to transition to life in the United States, even though an actual transfer of wealth was not involved. Instead, according to Judge Stranch, all of Lateef's numerous trips to the United States, her completion of the medical licensing test, her application for residency, her naturalization test, and her job interview all point to her desire to permanently move to the U.S. Furthermore, both she and her husband spent a total of $6,000 on different certifications and fees. Judge Stranch concluded that, “It defies reason to conclude that Lateef, along with her husband, would have undertaken such onerous steps and expended so much time and money throughout the time period in question if she had abandoned her intent to remain an LPR.”19 IV.

CONCLUSION

The Lateef case serves to demonstrate the two vastly differing understandings within the Sixth Circuit of the complexities facing a family in 17

Lateef, 683 F.3d at 286.

Id. at 33.

Id. at 37.

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the process of immigration. The majority adopted a rigid interpretation of the law which did not provide allowances for families in transition who are forced to be apart for months or even years at a time. Conversely, Judge Stranch's dissent concentrates on the practical problems associated with immigration. The case never addresses the issue that had U.S. immigration authorities acted properly upon the Lateef family's visa request in 1996, the subsequent years of waiting in Pakistan would never have occurred and the LPR status would not have been revoked. Also left unmentioned are common issues that would be expected to arise in families who are experiencing separation due to the immigration hassle. No consideration is given to the stress placed upon children, such as Lateef's daughter, whose psychological issues are not as apparent as physical illness but are just as serious. The Lateef family struggled to balance the importance of family unity while simultaneously beginning a new life and career in the United States. However, their case is only used by the majority to narrow LPR exemptions originally allowed in Hana, resulting in requirements that are now even more difficult to overcome and which are indifferent to the practical challenges facing an immigrating family.

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COMPETENT TRANSLATION IN THE CONTEXT OF HEARSAY United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012) Christina Magrans I.

FACTUAL BACKGROUND

In May 2009, Claudio Romo-Chavez attempted to cross the border from Mexico into the United States in a 1999 Buick Century. Romo-Chavez told Customs and Border Protection (“CPB”) Officer Brian Tipling that he wanted to return two shirts to a Dillard’s store in Scottsdale and that he was from Magdalena, Mexico. Officer Tipling, noticing that the vehicle exhibited evidence of tampering, referred Romo-Chavez to Officer David Aldrich for further investigation Romo-Chavez told Aldrich that that he was from a town south of Magdalena and between Obregon and Hermosillo and that he was going to “Tucson, maybe Phoenix” for business and for pleasure. Officer Aldrich noticed the signs of tampering on the vehicle, and later Officers Edward Vejar and Jeff Steger, with the aid of a drug detection dog, removed packages containing a substance later identified as methamphetamine as well as some items that were not preserved because they deemed to be of no “evidentiary value.” During the search, Special Agent Andrew Simboli of the Immigration and Customs Enforcement (“ICE”) interviewed Romo-Chavez but was only able to traverse the language barrier well enough to ascertain basic information. Officer David Hernandez joined the interview to translate and Mirandize Romo-Chavez. During the interview, Romo-Chavez stated that he intended to return two shirts at a Dillard’s store in Phoenix, then trade his Buick for a truck and $2,000 in Nogales, Mexico. He told the officers that he had recently submitted his vehicle for mechanical work, during which time the methamphetamine must have been planted. Further investigation revealed that he had crossed the Mexico-United States border several times with a known drug trafficker named Gustavo Vargas-Diaz. Romo-Chavez was charged with possession of methamphetamine with intent to distribute1 and with importing the substance into the United States.2 1

See 21 U.S.C. § 841(a)(1)(2010); see id. at § 841(b)(1)(A)(viii)(2010).

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Romo-Chavez presented arguments at trial that Vargas-Diaz had supplied the car, that Vargas-Diaz secretly planted the methamphetamine, and that the items removed from his car that were not preserved would have supported his argument that his primary motive for going to the United States were to get information about attending the University of Phoenix, to return shirts at Dillard’s, and to repair his vehicle. Despite his arguments, Romo-Chavez was convicted. II.

ISSUES ON APPEAL

Romo Chavez argued on appeal that the courts should have excluded as inadmissible hearsay the statements he made to Officer Hernandez as presented at trial by Agent Simboli and that under the Sixth Amendment he had a right to confront the adverse witness. The government argued, however, that the statements were party opponent admissible statements3 acquired through a language conduit.4 Because the statements were essentially “his,” the government reasoned that Romo-Chavez did not have a right to confront those witnesses. The Ninth Circuit sided with the government. RomoChavez’s argument that the evidence taken from his vehicle would have helped his defense similarly failed when he conceded that the officers did not act in bad faith in failing to preserve the evidence.5 III.

RATIONALE

The Ninth Circuit affirmed Romo-Chavez’s conviction. The court found that the statements that Romo-Chavez made to Officer Hernandez were admissions of a party opponent and therefore satisfied an exception to the general hearsay rule that out of court statements presented in court for the truth of the matter asserted are inadmissible. The court balanced the factors delineated in United States v. Garcia6and determined that Romo-Chavez’s statements made to the interpreter Officer Hernandez should be treated as Romo-Chavez’s own statements. 2

See id. at § 960(a)(1) (2010); see id. at § 960(b)(1)(H). See FED. R. EVID. 802. 4 See FED. R. EVID. 801(d)(2). 5 United States v. Artero, 121 F.3d 1256, 1259 (9th Cir. 1997); United States v. Jennell, 749 F.2d 1302, 1308-09 (9th Cir. 1984); accord Arizona v. Youngblood, 488 U.S. 51, 58 (1988); United States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010). 6 15 F.3d 341, 342 (9th Cir. 1994). 3

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The first factor of the Garcia test examines which party supplied the interpreter.7 Officer Hernandez was government-supplied but because he was not acting as a law enforcement member and did not ask any questions sua sponte, this fact was not sufficient to make the statements inadmissible hearsay. The second Garcia factor contemplates whether the interpreter had a motive to mislead or distort the translation.8 Romo-Chavez presented no evidence to support a finding that Officer Hernandez had a motive to do so, and the court would not presume the matter. The last Garcia factor considers whether the interpreter was sufficiently skilled as a translator 9 Despite the errors Hernandez made while Mirandizing the defendant, the court deemed Hernandez competent because he had grown up in El Paso, studied Spanish in school, spoke Spanish with his wife, conducted similar interviews regularly. Furthermore, the circumstances required only “low level” Spanish. The court did not consider the last Garcia factor, whether the actions that occurred after the conversations were consistent with the translation.10 The court ultimately determined that the statements that Romo-Chavez made to Hernandez were properly admitted because they satisfied an exception to the hearsay exclusion rule as statements made by a party opponent as translated by a “language conduit.” IV.

RAMIFICATIONS OF THE DECISION

The Romo-Chavez decision will have a profound impact on all immigrants who do not yet possess a strong command of the English language. The decision will not only impact immigrants crossing customs inspections on the Mexico-United States border, but also those stopped by law enforcement in other circumstances. The court’s opinion itself completely failed to consider that immigrants may view law enforcement in a more threatening light due to interactions in their own country and that it creates additional procedural loopholes for foreign language speakers, and marginalize and penalize foreigners for their lack of understanding of the English language.

Id. Id. 9 Id. 10 Id. 8

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The court modified the first prong of the Garcia test to determine not only who supplied the interpreter, but also in what capacity the interpreter was acting and whether the interpreters play an active role in the interviews. Unfortunately, the modification of this prong fails to take into account the role that law enforcement officers play in foreign countries or even the nature of the officers in general. Additionally, the decision sets a murky standard for levels of Spanish fluency. As the concurrence noted, growing up around Spanish does not necessarily mean that the listener has a strong command of the language and that not all students of Spanish learn or retain the same information or develop the same abilities. The court was too willing to accept that elementary school Spanish and the ability to understand but not speak made Hernandez a competent translator of legal rights and essential facts. Immigrants do not always understand the procedures and rights that are guaranteed in the United States and therefore will suffer more as competency of interpreter diminish. The Romo-Chavez decision sets a dangerous precedent for what the government is allowed to do in criminal circumstances with potential defendants who do not have a strong command of the English language. For instance, the court excused the translation mistakes Hernandez made reciting the Miranda rights in Spanish from memory instead of reading them from the standard “pre-printed form.” In other words, the government can overcome the second prong of the Garcia test, which requires the court to examine whether the interpreter had any motive to mislead or distort the statements, if it fails to follow normal procedure to insure the accuracy of the information in the first place. If the interpreter or translator is unqualified, he or she will distort the translation without any bad faith, but will distorts the statements nonetheless. The Romo-Chavez court’s reasoning will enable the government to circumvent the second prong of the Garcia test. V.

CONCLUSION

The Romo-Chavez decision will impact most notably immigrants who are not fluent in English. Though Romo-Chavez was convicted of drug offense, any circumstance under which an English-deficient immigrant is stopped by law enforcement will lend itself to similar difficulties and possibly detrimental consequences. The court established very subjective standards of translator competency and a person’s view of the role and nature of law

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enforcement. Ultimately, the court set dangerous precedent for when it provided the government with a procedural loophole whereby an interpreter who does his best is not qualified will be unable to give an accurate translation and thereby distort the information without bad faith.