Civil Rights Litigation and Legislation
I. Primary Structure/Questions
a. What is the congressional source of power?
b. How broad is the enactment?
i. Who are the plaintiffs, defendants, exclusions
ii. What type of conduct
iii. What defenses
c. How is the act enforced
d. What is the interaction with other statutes
II. Congressional power to enforce civil rights (4 primary sources)
a. Civil War (Reconstruction) Amendments (as read in 1883 Civil Rights Cases).
i. 13th Amendment
1. Reaches private action, but only to the extent eradicating the badges and incidents of slavery.
2. Badges and incidents are those fundamental to freedom (contract rights, to sue, be parties, give evidence, and property rights)
3. Not seen to have extended to social rights, such as accommodations (See 1981, 1982)
ii. 14th Amendment
1. Does not reach private action. Since Civil Rights cases, a state action requirement.
2. Note Harlan dissent. (14th fives all rights of citizenship, accommodations are a badge and incident.)
iii. US v. Guest (1966): An aberration, under which court deferred to Congress’ substantive determination of the scope of the 14th amendment’s protections.
iv. Jones v. Alfred Mayer (1968) Challenging Congressional power to enact 1982 (property rights). Claims source in 13th amendment, thus capable of reaching private action.
v. See below, re: expanding power under Reconstruction amendments.
b. Commerce Clause (source of 1964, Title II, Civil Rights Act).
i. Heart of Atlanta v. US (1964) Upholds use of commerce power to reach public accommodations (contrast to Civil Rights Cases, in which no thought of using commerce power).
1. Differs from Civil Rights Cases in that the commerce source requires a jurisdictional hook, i.e. only those businesses engaged in interstate commerce (but see Darby, Wickard, etc, broadly extending commerce power).
2. Katzenbach v. McClung (1964) Ollie’s barbecue restaurant received supplies from interstate commerce, thus subject to Title II. Note:
a. By virtue of RB deference, a case-by-case analysis not required (i.e. to permit litigant to prove commerce connection, or lack)
b. Reaching past the regulation of the goods themselves to the recipients of the goods.
c. That regulating morality under commerce clause not an issue.
3. 10th Amendment limits to commerce power
a. Garcia v. San Antonio MTA (1985) Following Usery, determination that 10A limited congress power to act on states (minimum wage laws), Garcia overrules. State power held in electoral system, political process and ability to financially leverage.
i. Note, Gregory v. Ashcroft, avoids 10A issue, but states that Congress must at least be explicit (unmistakably clear” when overriding the Federal/state sovereignty balance.)
b. New York v. US (1992) Low level radioactive waste act includes “take title” provision. Congress exceeded power for reasons distinguishable from Garcia.
i. Not generally applicable, but aimed at just the states.
ii. State required to legislate. i.e. making states pass laws (puppets of Congress).
iii. See also Printz v. US, executive branch version, requiring state enforcement (temporarily) of Brady Handgun Bill and Reno v. Condon, actually just a straight regulation of a thing in commerce.
4. Restrictions on Commerce (inherent)
a. US v. Lopez (1995) Gun Free School Zone act seen to exceed commerce power. Factors include:
i. Criminal provision
ii. No jurisdictional hook (i.e. guns that moved in commerce)
iii. Non-economic activity
iv. No findings by Congress
b. US v. Morrison (2000) Clarifies that Lopez not just a process decision, and that the jurisdictional hook alone does not solve the problem. In light of extensive findings, Court determines that it has the final call on the sufficiency of findings and Lopez and Morrison suggest the key issue is non-economic activity (maybe also criminal).
i. Are all Federal criminal laws sourced in the commerce power and non-economic questionable? Yes.
Is this a valid exercise of Congress’s power under the commerce clause?
How do you decide of they can regulate?
– Congress may regulate:
o 1. the channels of interstate commerce
o 2. the instrumentalities of interstate commerce and persons or things in interstate commerce, and
o 3. activities that have a substantial effect on interstate commerce
§ You can show substantial effect by showing:
1. 1. Aggregate effect
2. 2. These first three ask if Congress had a rational basis for finding activity affects interstate commerce
§ But (from Lopez) if Congress is regulating non-economic activity then there must be and we abandon aggregate affect approach:
1. a jurisdictional element and
2. congressional findings, and
3. also Congress cannot be regulating laws (like educations and crime) that are traditionally handled by the State-see Lopez and Morrison
4. BUT, Congress can regulate non-economic if Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. If it is a commodity in interstate commerce (Raich)
o When will there be a 10th Amendment restriction on what otherwise is a valid exercise of Congress’s commerce power (from Reno)?
§ When the regulation targets only the states (not the private sector), and is viewed as commandeering the legislative and executive branches of a state to act a certain way
§ Court said that the law did not violate the 10th Amendment because it was a prohibition of conduct, not an affirmative mandate as in NY and Printz
c. Expanding (or not) power under the 14th Amendment
Prior to this case- SC has said english literacy tests were constitutional- Congress then passes a statute pursuant to §5 of the 14th Amendment- saying literacy tests in English are not lawful as long as you have gone past the 6th gr. In Puerto Rico—State had been using English literacy tests&couldn’t pass them
Katzenbach v. Morgan and Morgan (1966)- Issue: literacy tests to vote-
– Concerned the constitutionality of §4(e) of the Voting Rights Act of 1965, which provides that no person who has completed sixth grade in a Puerto Rican school, where instruction was in Spanish, shall be denied the right to vote because of failing an English literacy requirement.
o Congress in the Voting Rights Act, sought to partially overturn Lassiter by providing that failing a literacy test could not bar a person from voting if the person was educated through the 6th grade in Puerto Rico. The Court upheld the provision as a proper exercise of the powers granted to Congress by §5 of the 14th Amendment. The Court offered two reasons in support of the conclusion:
§ 1. Congress could have concluded that granting Puerto Ricans the right to vote would empower them and help them eliminate discrimination against them – constitutional as a remedy for discrimination.
§ 2. Congress could find that the literacy test denied equal protection, even though this was contrary to the holding in Lassiter. This would accord Congress the authority to define the meaning of the 14th Amendment.
– S. Ct. in Lassiter – literacy test does not violate E.P.
o Congress pass Voting Rights Act that prohibits some state use of literacy test
o S. Ct. says in Katzenbach that the VRA is constitutional, what is the way to undue S.Ct. decision:
§ Make a constitutional amendment
i. Defining the Scope
of Trustees of the University of Alabama v. Garrett (2001) Challenges Title I of ADA. Disability not a suspect class (Cleburne) thus much like Kimel. Here, findings more extensive, but pattern included non-state actors. Remedy no congruent in requiring states to meet accommodations unless no “undue” burden— The Act is valid under Commerce Clause, it just can’t get us back
THERE IS STILL A REMEDY, these Cases are only dealing with 11th Amendment abrogation of state sovereignty for money
Injunctive relief, U.S. can bring action for monetary damages, state laws, just no private cause of action
2. US v. Morrison (2000) Gender-based, which triggers intermediate scrutiny, but here using state action to punish criminal defendant and applying it uniformly throughout the nation (no geographical limits).
Nevada v. Hibbs (2003) Broader discussion of prophylactic statutes. Here (surprisingly) passes C&P test. This time, gender bias helps to define a broader pattern and past intentional discrimination of women in the workplace (despite record largely focused on private actors). Finally, remedy comes as a result of past, failed, legislation and is limited in scope (i.e. provides for only unpaid leave). Scalia upset that not in response to a violation at a state or local level and Kennedy says simply a requirement of equal leave under 14A would have sufficed— Hibbs Case:
Rehnquist Writes the Opinion—-FMLA is a valid excecise of Congress power under the 14th Amendment
The FMLA does it even reach gender discrimination?
What does the Act do? It gives everybody 12 weeks of unpaid leave, almost everybody, are exceptions for particular positions where granting 12 wks would be a severe hardship
No gender bias—just a RB, it is clearly a situation where Congress was going beyond the Constitional violation or the 14th Amendment,
Thus must be a valid remedial or preventive law
Ask is their a long history of discrimination by state employers—-nto really, so has Rehnquist changed the test? No its just much easier to establish the show congressional findings of 14th Amendment violations when dealing with suspect or quasi suspect violations, maybe we wont take as close a look
Congruent and proportional?
Not really—–Law that reaches all states, even if they are already trying to work on their problems through state—wasn’t temporary
And creates perverse outcomes—12 weeks for men 44 weeks for women-ok under the FMLA but is still reinforcing gender stereotypes
Intersting question is why the self-care provision is ok under FMLA when it is not linked to gender Bias at all but would invoke RB review
3. Tennessee v. Lane (2004) Title II of ADA plaintiffs unable to physically access court. Shifts from EPC to Due Process and gets O’Connor on board. Found valid, but here, as applied to just access to courts due process. Also, relies on limited remedy of providing “reasonable accommodations.” Rhenquist would not read access to courts so literally.
4. 14th A + 11th A
a. Clear intent to abrogate
b. C&P
