CIVIL RIGHTS REVISED OUTLINE

I. INTRO TO AMERICAN RACE PROBLEM AND CIVIL RIGHTS PERSPECTIVES

a) Separate and unequal.

• Protected by the Constitution and state slave laws (esp. in the South.).
Ex: Article I Sec. 2 Cl.3: counted slaves as 5/3 of a person to increase
Congressional representation in a state.
Article IV Sec. 2 Cl.3: fugitive slave clause which preserved slave’s status as
recoverable property even if slaves escape to “free” states.
b) Slaves nor their descendants could be citizens.
Ex. Dred Scott (slave) v. Sanford: P brought suit to assert “free slave” status
when D claimed his ownership of P. SC held that Scott could not be free under
Article IV Sec 2 Cl 3. Case was brought back in fed court and held that P did not
have standing because P cannot be a citizen because AA were not recognized as
part of “We the People” in the Const.
c) Reconstruction (1865-1877)
• Amend. V: No person be deprived, without due process of law
• Amend. XIII: Abolished slavery.
• Amend. XIV:
o All persons born or naturalized in the US are citizens of the state where they
reside
o Due Process and Equal Protection Clauses:
 Nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
• This addressed the Dred Scott case regarding AA as citizens
under the Const.
• Amend. XV: Right to vote must not be denied based on race, color or previous
condition of servitude.

d) Separate BUT Equal

 Jim Crow Segregation- a response to control post-slavery.
o EX: Plessy (1/8 AA) v. Ferguson: P was 1/8 AA who sat in the white railway
car and was then arrested for violating LA state law of Segregation (Jim
Crow). SC held that under the separate-but-equal doctrine, separate facilities
for blacks and whites satisfied the Fourteenth Amendment so long as they
were equal.
 Harlan’s Dissent: “But it is difficult to reconcile that boast with a
state of law which, practically, puts the brand of servitude and
degradation upon a large class of our fellow citizens, our equals
before the law. The thin disguise of “equal” accommodations for
passengers in railroad coaches will not mislead anyone, nor atone for
the wrong this day done”

II. CIVIL RIGHTS PERSPECTIVES

CLASSICAL LIBERALISM is both liberal and conservative expressions. It is a belief that FEO
is sound. There are two views under this paradigm.

TRADITIONALISM REFORMISM
• Current civil rights laws are sufficient in • FEO is conceptually sound but
 addressing civil rights issues
• Individual rights are more important
• Invented by the liberals in the Jim Crow
Era
• See trouble with racial differences being
put above racial similarities
• No one is entitled to special treatment
• Color blindness
• See racial separation as internal—it is
blacks own fault they are down
• Affirmative action hurts—stigmatizes
• “Pull yourself up by your own bootstraps”
Prescription:
• individual self help
• Looks at Family Based Programs
• Equal Opportunity
OPPOSITIONAL THEORISTS
CRITICAL RACE THEORISTS
• Equal opportunity fails to recognize
America’s socio-economic structure is not
racially neutral
• Do not see internal problems and focused
more on the external-the structure
• All about power and lack of distribution of
power
• Insider/Outsider Dichotomy
o Insider:White Males
o Outsider: ppl of color, women,
LGBT
• Am. Society is fundamentally slanted in
favor of insiders (white males) Not objectiv
• Racism exits even w/o discriminatory
intent
• Never on the same level playing field and
always will be slanted in favor of certain
groups
• White hegemony is as racist as Jim crow
operationally flawed.
• Strongly disagrees with the Trads.
Because RACE still MATTERS.
o Slavery and Jim Crow continue to
have lingering effects that limit
opportunity.
• The goal of equal opportunity is good, but
the method to get there need to be
reformed
• Group rights are more important
• Agree with traditionalists that equal
opportunity is the key
• They believe that slavery and Jim Crow
have lingering effects that effect blacks
• Racism is primarily due to external factors
• Internal factors do exist
• Racism causes bad values within the
minority communities
• In favor of affirmative action
Solution: Collective Prescription:
• Supports race-conscious measures
• Sees the significance of structural
barriers (institutional racism)
• Difference b/w racial exclusion and
inclusion in positive programs.
• In favor of affirmative Action
• Looks at Family Based Help
LIMITED SEPARATISTS
• See both internal and external factors that
lead to the problem
• “Racial Solidarists”- seek voluntary
separation.
• Contend that liberalists are focused on the
wrong problem
o Racial integration is NOT solution
• Too much faith given to racial integration
which is DEPENDENT on the kindness of
whites
• Fails to distinguish between racial
segregation and voluntary separation.
Solution: Equalization of governmental
funding for black schools, etc.
• Legalize govntl funding in a
way that does not trample rights
of other groups.
o Ex.Public funding for traditionally
black colleges
• Idea of conformity and color blind rhetoric:
 era whites whiteness is a standard-harmful to the
• Solution: since prob is external, so is sol. community
o Distribute benefits: STRONG • Racial solidarity fosters strong minority
AFFIRMATIVE ACTION community
programs
o More extreme but normally focused
on affirm. Action
o Reformism will never work b/c
integration won’t work b/c whites
will never give up their privilege.
Traditionalists: takes an individual, Reformists: it takes a family, Critiical: community needs
help by external factors, Limited Separatists: it takes a village

EDUCATION
a) Separate But Equal Doctrine
i) 14th Amendment: NO VIOLATION
(1) Roberts v. City of Boston (1849)- City of Boston had separate schools for whites
and blacks. HELD: that city could legally maintain segregated schools b/c all
races were provided schools and that it is w/in purview of school commission to
determine how to arrange, classify and distribute pupils.
(2) Cumming v. Richmond Board of Education (1899)-first case to apply SBE
doctrine –Blacks were paying taxes to fund schools and black schools got closed
for lack of funding. HELD: Not a violation of 14th Amendment b/c public
taxation (funding for schools) are shared by all citizens w/o discrimination against
class or race. A matter for States to decide. Unless the act is egregious, fed govnt
is not going to meddle.
(3) Gong Lum v. Rice- A Chinese girl sued bc she had to go to black schools and
challenged whether a Chinese person is colored. HELD: Not a violation of 14th
Amendment. US born, Chinese descent citizen is not denied equal protection by
being classified by state as colored and segregated from white children because
equal facilities are provided to both white and colored.

ii) 14th Amendment: VIOLATION

(1) Clark v. Board of Education- Separate schools for blacks and whites. HELD:
that the IA const required schools for the education of all the youths of the state
and all races were to attend same schools because const “all youths” showed
intent to educate all State’s children together.
(2) Pearson v. Murray-Thurgood Marshall’s 1st major civil rights case. Black man
applied to Maryland law school but rejected on basis of race. No law school for
blacks in Maryland though they offered scholarship to go to out of state school.
“Equality of treatment does not require that privileges be provided members of
the two races in the same place.” But, did require that “separation of the races
must nevertheless furnish equal treatment.” Cost for him to move to closest one in
DC made the scholarship plan unequal and no separate school for him to attend in
Maryland. HELD: Violated 14th Amendment. Ordered that black man be admitted
into the school. Prior to this no precedent for court ordered integration in any
American court.
(3) MO ex rel Gaines v. Canada-Black man was trying to get into law school, MS
had no law school for blacks. He was offered a scholarship for a law school in
another state. HELD: Violation of 14th Amendment bc there had to be a law
school for blacks in MS; separate but equal is ok just has to be “equal”.
 (4) McLaurin v. OK State Regent- Black PhD candidate and other blacks, had to sit,
eat, and study in separate areas. HELD: Violation of 14th Amendment, b/c there
is a const. difference b/w restrictions imposed by the state and the refusal of indiv.
to commingle where the state presents no bar. Once AA is admitted, couldn’t
segregate the student w/in institution
(5) Piper v. Big Pine -Native Americans were not allowed in white schools, No
Native Am. state run school in the dist but fed schools were available. CA CT
HELD: Violation of 14th Amendment. Schools must be integrated.
(6) Sweatt v. Painter- Black man was denied admission to white law school, state
created black law school, but P wouldn’t enroll. HELD: Violation of 14th
Amendment, school unequal in physical facilities, reputation of faculty, position
and influence. Making a great law school is its rep and history.
(7) Mendez v. Westminister- Mexican children segregated in Southwest. Housing
segregated thru racial covenants. Public pools segregated-Mexican Mon. CA CT
HELD: Violated 14th Amendment. Segregation is bad and that separate is
NEVER equal. CA was desegregated after the trial but CA appealed seg. of
Asians and NA. Am. After statute was passed for integration.
(8) SEMINOLE CASE! Brown v. Topeka Board of Education I (1954)- Class
action of black students arguing separate but equal violates 14th Amendment.
HELD: Separate but equal violated 14th Amendment; applies to education only
(did not overrule Plessy since public accommodations)
(9) Bolling v. Sharpe- Class action of black students- SBE- violates 5th and 14th
Amendment. HELD: Violated 5th Am- due process b/c it is under federal law and
14th amendment equal protection (same as Brown). Applied it to the Federal
Government.
b) Separate IS NOT Equal
i) Desegregation
(1) Brown v. Topeka Board of Education II (1955)- After Brown I local schools
were reluctant to integrate. HELD: There must be (1) good faith compliance
administratively (2) with all deliberate speed .
(a) The “with all but deliberate speed” ended up slowing down the process, but it
could have been dangerous to make integration move faster.
(i) Chief Justice Warren was possibly compromising with a majority of the
members of the Court who were from the South.
(2) Cooper v. Aaron-Little Rock 9- Little Rock schools were going to admit nine
blacks as a gradual integration. The governor of AK openly resisted Brown and
brought in the National Guard to prevent school integration. HELD: States-
Governor cannot suspend integration
(3) Keyes v. School District No.1, Denver CO (1973)- Zoning made schools
segregated. HELD: Violation of 14th Amendment bc zoning is state action.
Rhenquist dissented arguing Brown did not impose a duty to integrate, only a
prohibition against discrimination.
(i) ANALYSIS: UNLAWFUL SEGREGATION
1. Intent to segregate establishes a prima facie case of unlawful
segregative design on part of the school auth.
2. School auth has burden of proof that seg intent was not a factor that
motivated their actions.
3. When P shows current condition of seg resulting from “intentional
state action” (i.e. zonong) WAS de jure seg as much as stat imposed
seg.
(ii) Desegregation v. Integration:
a. Desegregation is passive and integration is taking proactive
 efforts.
b. De Jure v. De Facto: de jure is by law and de facto is actual
discrimnation.
c. Affirmative Duty Doctrine: If a P can show de jure seg pre 1954
either stat or Keyes analysis, BURDEN of PROOF shifts to the
school dist to show that de jure seg is not responsible for present
seg. If school cannot rebut, school dist is liable under Brown for
deseg the entire system.

ii) DESEGREGATIVE RELIEF

(1)Swann v. Charlotte-Mecklenburg Board of Educ.-School board proposed plans
to DC but were dragging their feet to desegregate so the Court appointed Dr.
Finger to desegregate the schools. He added to the school’s plan of reassigning
students busing. HELD: Dist Ct has equitable power to remedy actual finding of
de jure segregation and has a lot of discretion. The LEGAL STANDARD is good
faith compliance to the zxtent that is practicable. Cts do not wnt to micromanage
this, great deference are afforded to schools.
(i) SWANN REMEDIES
1. Racial Balance/Racial Quotas: is a good starting point but can only be
used in very limited circumstances.
2. One Race Schools: subjected to strict scrutiny b/c of presumption
against schools w/ substantially disproportionate in racial composition.
Not a per se rule b/c it sometimes just happens. The burden is on the
school dist. To show that there were no intentions to segregate which
is not the result of past discrimination.
3. Transportation: subjected to reasonable standard. Schools can have
mandatory busing but cant have kids on bus for too long.
4. Gerrymandering the Districts: altering the attendance zones. Cts can
make board re-draw the districts and alter attendance zones to achieve
truly non-discriminatory assignments
(ii) Racial Balance/ Racial Quotas
a. Can be used, but the purpose and use has to be limited
(iii) One Race Schools
a. There can be no per se rule, it is not necessarily indicative of de
jure segregation the courts have a presumption against one race
school and the school has the burden to prove that it is not a result
of past discrimination
(iv)Rearrangement of School District/ Altering Attendance Zones
a. This is supposed to be an interim corrective measure.
(2) PICS v. Seattle School Dist. No.1- Seattle had school of choice and one of the
criteria to determine who went to what school was race. The Court analyzed this
with strict scrutiny, so the state has to have a compelling interest to use race to
decide and must be narrowly tailored.
 HELD: Violated 14th Amendment (EP) by classifying students by race and
relying upon it in school assignments. Racial imbalance and racial classification
in a non-individualized way is not unconstitutional by itself. Grutter
distinguished: grade school v. higher educ and meaningful numbers,
individualized.
DISSENT: Breyer -14th Am. EP clause permits local school boards to use race-conscious
criteria to achieve positive goals, even when the Constitution does not compel it.
Deference to school board as better equipped to practice that will best meet the
educational needs of their students. Justice Stevens filed dissenting opinion, Roberts
fails to note that the schoolchildren dictated where they could go to school were
specifically blacks.
i) COMPELLING INTERESTS (Parents Involved PICS)

(a) Diversity in higher education

(b) Remedying past discrimination
iii) Vestiges of Discrimnation-Cts will look t transportation, staff and facilities
construction.
iv) White Flight- Whites in large area; minorities come in, then white people leave the
area.
(a) Changing demographics, cultural and socio-economic factors can segregate
schools.
(b) Cts has taken it as far as it could-people should be allowed to separate
themselves-ppl are resistant but cts cannot regulate and micro manage.
ACCOMODATING CHANGING DEMOGRAPHIC PATTERNS
(2) Pasadena City Board of Educ. V. Spangler- several students sought injunctive
relief against unconstitutional segregation of the Pasadena School system. HELD:
DC’s approval of a plan to obtain racial neutrality in public school attendance was
permissible, but was not entitled to require school district to require
rearrangements of attendance zones yearly to ensure that racial mix desired by the
court.
(3) Eisenberg- Student denied transfer to school on the basis of race, because he was
white. HELD: Violated 14th Am. EP-Race based govntl actions are presumed to
be invalid and subject to strict scrutiny and nothing overcomes the presumption.
iii. TAILORING RELIEF
Ct must first define the scope of violation by:
1. Determining remedy is appropriate
2. Fashion the remedy tailored to fit the specific violation

SCOPE OF VIOLATION
(1)Milliken v. Bradley (Milliken I)- Detroit schools were found to still have de jure
segregation in 1970. There was state action that caused the segregation . HELD:
The district court can order remedies when there is actual evidence that multiple
districts engaged in violations (act of segregations).

• Douglas Dissent: State controls school, boundaries, etc. so the state is

the bad actor and the districts are just agents of the state

• White Dissent: feels like the majority created too strict of a rule and
you can try to desegregate, but then whites will just move(White
 Flight)
(2)How do you reconcile Keyes with Milliken I?

• In Keyes a finding of intentionally segregative school board actions in a

meaningful portion of a school system shifts to the school board the burden of
proving that other segregated schools within the system are not also the result
of intentionally segregative actions.

• In Milliken I the majority opinion held that the “scope of the remedy is
determined by the nature and extent of the constitutional violation.” There
could be a cross-district remedy only if there had been a cross-district wrong.

• You can reconcile these cases by distinguishing. Keyes deals with

segregation within a school system. Milliken deals with segregation in
different school districts

iv. COMPENSATORY RELIEF-Who bears the cost?

(1)Milliken v.Bradley (Milliken II)- Parents wanted testing that was not culturally,
racially biased. Also wanted teachers to get counseling to make sure students
were being treated the same. The school argued that cost sharing (between Detroit
and the state of MI). HELD: the desegregation decree is to be divided by the two
bad actors, (the Detroit Board and the state). Must take into account interests of
state and local auth managing their own affairs, consistent with const
(2)Missouri v. Jenkins (Jenkins III)- The school district was guilty of desegregation
violations. One thing the district court ordered was salary increases for staff in
Kansas City. HELD: Salary increases were too unrelated to segregation.
Thomas Conc.: Equal protection is for the individual, not the group
v. RACIAL DISCRIMINATION IN HIGHER EDUCATION
Because of the freedom of choice in selecting universities (among others), the court imposes a
different duty to desegregate. This is the distinguishing factor from primary schools where
students are forced to go to school where they live.

DISPARATE IMPACT
(1)United States v. Fordice- MI university had de jure segregation and was ordered
to desegregate. The state has a constitutional duty to get rid of de jure segregation
in higher education. The adoption of race neutral acceptance policies was enough
for the district court, but the Supreme Court said it was not enough. HELD: The
testing still showed disparate impact. Violated 14th Am. The schools have not met
their burden of Brown by having voluntary segregation. Thomas Conc: Did not
want black colleges to be destroyed b/c they sustained blacks during seg, in an
effort to combat vestiges of racial disc.
4 policies (non-exhaustive) for standard of Brown application.
1. Admission Standard-ACT testing not enough as standard to measure
 qualifications. There may be state action traceable to state action.
2. Duplicity of Programs-suspicious and indicative of de jure seg-no
educ. justification.
3. Institutional Mission Assignments- having difft mission not violative
of EP but leaving it unchanged from the past could be.
4. Number of Universities in operation- perpetuates segregation in higher
educ. because it affect students choice.

GENDER DISCRIMINATION
o United States v. Virginia- VMI is an all male military school, women sued bc they
wanted to be admitted. The district court ruled there was no violation. The appellate
court ruled that there was, and gave options to the school to let women in or create a
parallel school.Virginia chose to create a parallel school. Substantially related to an
important governmental objective (standard normally used in gender discrimination).
The school argued men and women learn differently, single sex education has
benefits, creates diversity in educational approaches. HELD: Violated 14th Am. VMI
was not established or maintained to promote these ideals, must allow women to
attend.
c) TITLE VI of CIVIL RIGHTS ACT of 1964-proscribes discrim. in any program that
receives federal funding b/c fed want to ensure fed agencies do not discriminate. It was a
catalyst for other legislation prohibiting discrim. in various forms. It also served as a
model for future anti-discrim. Statutes based on sex and age.
“No 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 fed finance
assistance.”

• Discriminatory intent is not required only, discriminatory effect is enough for private action
under Title VI
o EX:Guardians Association v. Civil Service Commission of the City of NY- NY
police minority employees alleged required exams for entry level positions
discriminated against blacks and Hispanics under Title VI. The two issues the Court
was looking at were 1) whether discriminatory intent is required and 2) if
compensatory relief was available. Appellate court held to establish Title VI,
discriminatory intent is required. PLURALITY- HELD: Supreme Court held that the
appellate court erred in requiring intent for private action under Title VI. Rather,
discriminatory effect is enough, intent not required to establish violation of Title VI.
Compensatory damages should be allowed only if discriminatory effect is proven b/c
where legal rights have been invaded fed cts may use any avail remedy to make good
the wrong Powell Conc: should be no private action under title VI would agree for
the alternate relief – no compensatory without Discriminatory intent. O’Connor
Conc: regulations imposing an impact standard should not be valid. Marshall
Dissent: agrees that proof of discrim intent is not required but believes that
 compensatory remedies are not available. Stevens: believes that they should be
afforded discriminatory intent.
Section 601- Claim based on Title VI itself, discriminatory intent is required.
 There is a private action under section 601.
 This is the substantive protection of title VI.
Section 602- Claim based on regulations implementing title VI, disparate impact is
enough to
establish claim.
 There is no private action under section 602. However, there may be a cause
of action under section 1983.
o No private action under 602
 Alexander v. Sandoval- AL wanted to make English as official language-
which incl. administering driving tests only in Eng. Ps filed suit under Title
XI for discriminating in basis of national origin. HELD: No standing to sue
and no private right of action under §602 b/c it does not contain language to
show the congressional intent that creates a right to private action like §601.
Scope of §602 would be impermissibly expanded if it recognized private
action to enforce regulations promulgated under §602. Stevens: There is a
right of action under §602, but since the majority held that there wasn’t
perhaps they can be brought under §1983. After this all cases have to prove
discriminatory intent
RELIEF under TITLE VI:
o NO compensatory relief under Title VI if there is no showing of discriminatory intent.
Only declaratory and limited injunctive relief is available.
EX: Guardians (see above)

d) TITLE IX of EDUCATION AMENDMENTS OF 1972

o Enacted to combat the problem of sex discrimination in federally funded schools.
“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.”
o Title IX Exceptions: Military schools and certain single-sex institutions, i.e.
sororities/fraternities.
o PRIVATE CAUSE OF ACTION – men and women are protected under Title IX.
EX: Cannon v. University of Chicago- P sued U of Chicago asserting that she
was denied admission b/c of her sex, and had a cause of action under Title IX
barring sex disc. HELD: Although Title IX does not expressly grant a private
right of action, there is a private cause of action under Title IX. Ct. applied the
four-part test set forth in Cort v. Ash. White dissent: Title IX was not intended to
create a private remedy, only remedy should be terminating fed funds.
o Use in order to determine whether there is an implied right of action under the statute.
Stevens.
Cort’s Factors
1.) P is in a special class for whose benefit the statute was enacted for.
2.) Legislative history express a legislative intent to create/deny private right
of action.
3.) Creation of the private right does not frustrate legislative scheme and
purpose.
4.) Does the right historically been concern of the states? Separation of
Powers
o Title IX requirements:
a. Does not require discriminatory intent when federal laws granted class of
persons certain rights. It does, require discriminatory effect like Title VI–
(easier to meet).
i. Although an explicit purpose to deny such a cause of action would have
been controlling. EX: Cannon

o Scope of Title IX:

a. Title IX does extend to employment.
i. Section 901: does not expressly include employees within its scope or
expressly exclude them, its broad directive that "no person" may be
discriminated against on the basis of gender, on its face, includes
employees as well as students.
ii. Section 902: was an enforcement provision: each agency that receives fed
funds are allowed to come up with their own rules.
EX: North Haven Board of Education v. Bell- Petitioners, federally funded public
school boards, brought separate suits challenging HEW's authority to issue the
regulations on the alleged ground that § 901was not intended to apply to employment
practices, and seeking declaratory and injunctive relief. HELD: Title IX's legislative
history corroborates the conclusion that employment discrimination was intended to
come within its prohibition. Powell Dissent: Stat is more exclusive rather than inclusive.

o STUDENT ON STUDENT HARASSMENT

o Student on Student harassment creates an abusive environment that deprives
educational benefits protected under Title IX.
 In order to establish Title IX private action based on student-on-student
harassment:
I. ONLY when funding recipient acts with deliberate
indifference to
o Deliberate indifference when funding recipient has
control over alleged harassment.
o NOT deliberate indifference where it lacks
authority to take remedial action.
II. KNOWN acts of harassment in its programs or activities-
(actual knowledge)
III. Harassment so severe, pervasive, and objectively offensive that
it effectively deprive victims access to educ.
opportunities/benefits prvided by the institution.
TEST: DOES THE INTERFERENCE SUBJECT PERSON TO
HARASSMENT?
EX: Davis, as next friend of La Shonda D. v. Monroe County Board of
Education- Mom(P) sued Board, on behalf of her fifth grade daughter alleging
that school officials failed to prevent daugter’s suffering sexual harassment of
another student. Mom claimed school's complacency created an abusive
environment that deprived her daughter of educational benefits promised her
under Title IX and requested for monetary and injunctive relief. HELD: Violated
Title IX because school board acted with deliberate indifference when no
disciplinary action taken after P reported harassment and hassment rose t level of
severe…b/c Ps grades dropped. Kennedy Dissent: Disciplining in education
should be left to state. Boys will be boys.
 o SPORTS PROGRAMS IN SCHOOL (class video)
o Regulations promulgated by the U.S. Department of Health, Education, and
Welfare concerning compliance with Title IX
 An institution is in compliance if:
(1) the institution has a history and continuing practice of program
expansion for the underrepresented sex, OR
(2) the institution is fully and effectively accommodating the interests
and abilities of the underrepresented sex, OR (3) the opportunities for
male and female students at the institution are substantially
proportionate to their respective full-time enrollments.

e) RELIEF UNDER TITLE IX

o Like private cause of action of Title IX, forms of relief is also silent.
 If there is a legal right, i.e. Title IX, there is a legal remedy. A damages
remedy is available when equitable remedies do not provide relief.
• EX: Frankiln v. Gwinnett County Public Schools- P-student filed
an action under Title IX against school district/admin, after she
was subjected to sexual harassment from a sports coach employed
by the school district. The district court held that there was no
remedy for Title IX, the appellate court affirmed. HELD: S Ct.
reversed holding IX provided a damages remedy (monetary
damages would be available) for the student because if there is a
legal right, the courts can find a legal remedy.
o Actual notice of sexual harassment required in awarding damages. Respondeat
Superior or constructive notice is not enough. Student was not allowed to
recover for sexual harassment by one of the district's teachers unless an official
of the district had actual notice of and was deliberately indifferent to the
misconduct.
EX: Gesber v. Lago Vista Independent School District-A girl was having
sex with her teacher and she never told. Some other conduct of his,
inappropriate comments, etc. were reported, but not regarding her. he
police eventually found her and him engaging in sexual intercourse. She
and her mother brought suit. HELD: See above. Stevens dissent:
Providing damages does not frustrate the purpose of Title IX. Too easy
for schools to insulate school admin from damage liability

III. EMPLOYMENT DISCRIMINATION

EMPLOYMENT PERSPECTIVES
Pro-Civil Rights Perspectives (Above)
Chicago School Perspectives
Laissez Faire Model
Bigots Make Bad Competitors
Inc. Posner-Epstein model
Racial Preference Licensing Act
Prof. Derrik Bell p.382

CHICAGO SCHOOL PERSPECTIVES:

LAISSEZ FAIRE Milton Friedman BIGOTS MAKE BAD COMPTITRS BMBC
• If it is appropriate for state to prohibit • Believes economic market will end
discrimination in employment due to race, employment discrimination-some
 color or religion, it is equally appropriate
for the state (provided majority) that indiv.
Must discriminate on the same bases.
• Assumes all laws are the same. No
difference between proscribing and
prohibiting racial discrimination.
-----------------------------------------------
---
EPSTEIN-POSNER BMBC Wrinkle
• BMBC still a more efficient and
efficacious response to employment
discrimination than anti-discrimination
laws such as Title VII
• Title VII-only create market distortions ,
which prevent market from achieving a
nondiscriminatory equilibrium b.c it
increases cost of hiring minority or women
workers
o Employers exposed to litigation, to
reduce exposure, emplyrs
discriminate in white applicants
through affirmative action
• Employer discrimination laws provide
little economic benefits for minorities or
women.
• CRITICISM: Prof. John Donahue
o Lacks empirical evidence and bad
public lpolicy
o Only supports reverse discr view
o Giving private firms freedom to
discriminate + dignity harms
without reducing social costs
minorities would bear searching for
emplymnt.
o If better w/o disc laws, then why is
there no repealment.
o Although empl laws ALONE not
sufficient, it works with self help
strategies may be effective in the
long run.
o
o Civil Rights Act of 1871 (42 USC ß1983)
 Prohibits discrimination under color of state law that rises to a deprivation of a
federally protected right
o Equal Pay Act of 1973
 Prohibits sex-based pay differential when job involves equal skill, effort,
responsibility, and performed under similar work conditions
employers prejudiced from the jump
o Emp disc is aminus based –
conscious rational choice
o Emplyr who don’t hire minorities
will eventually be driven out of
business b/c non discriminating
firms will have exclusive access to a
pool of qualified workers.
• CRITICISM:
o Fails to account market driven
discrimination-empl reacting to cust
preference
o Assumes market sructure
inapplicable to high level jobs
(corporate/professionals)–most
candidates comparable in qual and
evaluator given broad discretion n
hiring
o Fails to deal w/ certain externalities
associated w/ waitng for the market
to kickin –dignity harms imposed on
minority citizens
o Markets are imperfect-rejecting the
assumption of perfect competition or
market efficiency.
----------------------------------------------------
Racial Licensing Act: Prof. Derrick Bell
Business could discriminate if they obtained
license where the proceeds would go into a
public fund for AA,
 o Civil Rights Act of 1964

 Title VII prohibits discrimination based on race, color, sex, religion, national
origin
o Age Discrimination in Employment Act

 Prohibits discrimination of people over 40

o Rehabilitation Act of 1973

 Prohibits discrimination against persons with disabilities in programs

receiving federal funds
o Americans with Disabilities Act

 Prohibits discrimination based on disability

EMPLOYMENT DISCRIMINATION

o Civil Rights Act of 1871 (42 USC ß1983)

 Prohibits discrimination under color of state law that rises to a deprivation of a

federally protected right

o Equal Pay Act of 1973

 Prohibits sex-based pay differential when job involves equal skill, effort,
responsibility, and performed under similar work conditions
o Civil Rights Act of 1964

 Title VII prohibits discrimination based on race, color, sex, religion, national
origin
o Age Discrimination in Employment Act

 Prohibits discrimination of people over 40

o Rehabilitation Act of 1973

 Prohibits discrimination against persons with disabilities in programs

receiving federal funds
o Americans with Disabilities Act

 Prohibits discrimination based on disability

Title VII- Employment Anti-Discrimination

  Coverage

• Race: against persons of all races; includes discrimination based on

close association

• Color: includes intra-racial discrimination

• Religion: duty to accommodate certain religious practices

• Sex: includes gender, maternity cannot be penalized

• National Origin: country of birth, or ancestry, ethnic discrimination

• Retaliation: Sec. 704(a)- b/c P opposed unlawful emp. practice OR

made a charge, testified or assisted in an investigation, hearing or
proceedings.
o Sex Plus Doctrine- early Title VII- classifying employees on
the basis of sex plus another neutral characteristic. No longer
distinguished today in courts.

• There is no Title VII discrimination when women and men are held to
same standards.

 Craft

• Female news anchor sued bc she was told she

was not pretty enough to become an anchor.
However, a male counterpart was also told to
lose weight. Ct held no Title VII violation.

Background Elements of a Title VII Employment Discrimination Claim

 PROOF OF DISCRIMINATION

• Plaintiff bears the burden of proving by a preponderance of the

evidence that they suffered...
o Adverse employment Action

 Serious and material change in terms, conditions, or

privileges of employment

 Things generally not sufficient: schedule, allocation of

office equipment, transfers to different locations,
criticism or unfavorable evaluatin not acted upon.,etc.

 Discriminatory animus can show discriminatory

intent

• Discriminatory Animus- a dislike or ill will

towards a protected group. (E.g. Employer feels:
 I don't like women. Women are incompetent
and less intelligent than men and thus should not
work here/be promoted/etc.).

o Impermissible Motive

 Intent to subject plaintiff to an adverse employment

action based on protected class, race, religion, etc.

• Discriminatory intent as a motivating factor in

the adverse employment action can be satisfied
by showing evidence of discriminatory animus
(see above).

• Hishon
o Test provided to establish proof of
discrimination under Title VII.
o No woman had ever been made partner
at this law firm, woman who did not
make partner sued under Title VII
o Court held being made partner is
sufficient term of contract of
“employment” because key reason to
join firm. There is a Title VII claim.

Employment Discrimination

Disparate Impact
Disparate Treatment

Systemic Individual Systemic

2 Types of Employment Discrimination Cases

(1)Disparate treatment

 Individual Disparate Treatment: Employer is intentionally discriminating

against me because I am a member of group X (e.g. because I am Latino).
 • P can prove discrimination of direct/circumstantial evidence.

• Pre-textual evidence is when an employer justifies an action that is not

the real reason -- cover up. (McDonnel)

 Systemic Disparate Treatment: Employer is intentionally discriminating

against protected group X. (E.g. Employer refuses to hire qualified Latino
candidates.)

(1a) Individual Disparate Treatment

McDonell Douglas TEST
The plaintiff must carry the initial burden of establishing a prima facie case of racial
discrimination.
(1) he belongs to a racial minority
(2) he applied and was qualified for a job for which the ER was seeking
applicants.
o No requirement that P is as qualified as or more qualified than the
person selected.

 Walker v. Mortham-Burdine Notes

(3) Despite his qualifications, he was rejected.
(4) After his rejection, the position remained open and the Employer continued to
seek applicants from persons with plaintiff’s qualifications.
(a) Burden (of production) then shifts to ER to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.
(b) Burden then shifts to Plaintiff to prove that the proffered reason is a
pretext or discriminatory in application.

 (Burden of Proof always remains w/ Plaintiff.)

EX: McDonnell v. Green –established Pre Text Test.

• Green was fired and he then participated in illegal civil rights

demonstrations. He sued and lost bc he is not protected from illegal
civil demonstrations.

• Absence of an EEOC claim does not bar suit.

The burden of proof regarding defendant’s legitimate reason is one of production;

plaintiff’s burden for pretext is one of persuasion.
EX: TX Dept. of Community Affairs v. Burdine

 Distinguishes and identifies burden of proof from

 production and who bears them.

• Defendant bears the burden of production.

• Plaintiff bears that D intentionally discriminated

against P remains w/ the defendant at all times.

 Burdine was a female employee who did not receive a

promotion and was subsequently fired for “not getting
along with her team;” she was then rehired for a
different, non-supervisory, position than she sought
promotion for.
(1b) Systemic Disparate Treatment

Pattern and practice of employment discrimination must be proved by a preponderance

of the evidence that racial discrimination was the employer standard operating
procedure – the regular rather unusual practice.

Must prove that the employer purposefully treated the class less favorably than
others. Government carries the burden of proof.

Statistical analysis is circumstantial evidence of intent. It provides a basis where a court

can infer intent. Intent can be inferred in adverse effects however adverse effects do not
always establish intent.

To establish intent:

 A particular course of action must be “because of” not merely “in spite of” its
adverse effects upon an identifiable group.

Section 707 of title VII can only be brought by the EEOC or Atty. Gen. – the government.
Individual cannot bring the action.

Ex: Int’l Brotherhood of Teamsters

• Men with Hispanic surnames were not getting hired, or promotions

• Government brought a 707(a) action (EEOC sues employer)

• EEOC generally files suit unless it is a government employer (then

attny general files)

• Ct. held that no intent thus no action under Title VII because there
were no issue of legislative intent to exclude women rather to include
 veterans.

• **NOTE 16 P. 336 DEFINES PATTERN/PRACTICE OF

DISCRIMINATION**

• 707 and 706 actions are only treated differently in litigation

o Difference between 706 (individual) 707 (systemic) is that in
both employer and employee systemic disparate treatment
regularly or purposefully treated one group favorably than the
other groups.

• **SEE FOOTNOTE 24**

EX: Hazelwood School District v. US

• Attorney general filed suit b/c the school was not hiring enough blacks

• Court held that statistical disparity constitutes prima facie evidence of

pattern/practice discrimination. Hazelwood did not rebut the practice
or pattern.

• White argues we should look at the application pool to determine

discrimination
DEFENSE Disparate TREATMENT:
o BFOQ (Bone fide Occupational Qualification)

 Employer can discriminate where there is a BFOQ reasonably necessary to the

normal operation of that particular business or enterprise.
o When to apply BFOQ:

• Discrimination on the basis of sex because of safety

concerns is allowed only in narrow circumstances.

• Danger to a woman herself does not justify

discrimination. Has to be danger to others.

• Third party safety is a concern to the extent that it goes

to the core of the EEs job performance.

• Safety exception is limited to instances in which sex or

pregnancy actually interferes with the employees ability
to perform the job.

Disaparate Treatment Relief: Compensatory and punitive damages are available.

(2) Systemic Disparate IMPACT

• Disparate impact- (which is always systemic) claims are basically: Employer's

facially neutral practices or selection devices have a disproportionately adverse
impact on protected group X. (E.g. Employer's candidate selection exams have an
 adverse impact on Latinos who score disproportionately lower than Whites.)
o No evidence of subjective intent to discriminate is necessary.

o Evidence used: Direct, Pretext and Mixed Motive.

 PRETEXT: need to show reason for adverse

employment action is a coverup and was impermissibly
motivated.

• Courts use a strong basis in evidence to determine which to use; there

can be a prima facia case, but not a strong basis in evidence, higher
standard.

o Stages of Systemic Disparate Impact Case:

(1) A plaintiff must make a prima facie case usually through statistical
comparisons that the challenged employment practice has a substantial adverse
impact on the protected group.
(2) In response, the defendant can offer opposing statistics or criticize plaintiff's
statistical analysis or methodology.
(3) If Plaintiff establishes a prima facie case of disparate impact, the burden shifts
and employer must show that the challenged practice is job related and consistent
with business necessity.
(4) If employer proves business necessity, the plaintiff must show that an
alternative practice exists which would satisfy the employer's legitimate interests
without having a disparate impact and that the defendant refuses to implement it.

Discrimination cases can be established on the basis of disparate impact alone. Absence
of discriminatory intent does not redeem employment procedures when they are
operating to make it more challenging for protected class.

In systemic disparate impact case, statistics are evidence – they are the bottom line.
EX: Griggs v. Duke Power Co. (Important Title VII case)

• 13 blacks brought a class action against D bc they were

only getting jobs in the labor department which had the lowest
paying jobs

• DC held: case dismissed bc Title VII is not retroactive

• SC held: Disparate impact alone can establish a title VII

claim because title VII does not explicitly say anything specifically
about disparate impact.
Systemic Disparate impact Relief: injunctive or equitable relief only.
 Systemic DisparateTreatment Systemic Disparate Impact
Intent required Intent not required
Available Relief: Compensatory and Available Relief: injuctive/equitable relief.
Punitive No compensatory or punitive thus
No jury trial available

Discriminatory animus is NOT necessary to show discriminatory intent. Discriminatory animus

is just one way to show discriminatory intent. There can be discriminatory intent without
discriminatory animus.

EX: Johnson Controls

• Women who could still reproduce were not allowed to work with
batteries bc it cause birth defects

• There the employer said basically -- employees who can get pregnant
cannot work in this department which has exposure to lead.

• This employment classification was not facially neutral. People who

can get pregnant = women.

• The Court found this was intentional discrimination against women.

o However, this was not discriminatory animus because the
employer had nothing against women, but still was
intentionally discriminating against them.

• Posner dissenting: said BFOQ standard should be used

Interplay with Disparate Treatment and Disparate Impact

Conflict between the disparate-treatment and disparate-impact provisions, permissible

justifications for disparate treatment must be grounded in the strong-basis-in-evidence standard.
EX: Ricci

• City was giving tests to firefighters, took steps to ensure they were
non-discriminatory, but then didn’t use the tests bc there was evidence
of disparate impact

• DC: granted MSJ for city bc motivations for not using the test was to
avoid disparate impact.

DEFENSES Disparate IMPACT:

 Business Necessity

• In a disparate impact claim, once a plaintiff has made out a prima facie
case, the employer assumes the burden of producing evidence that the
challenged employment practice has a legitimate business justification.

• After the employer has proffered a legitimate business justification, the

plaintiff bears the burden of persuading the jury that the employer's
justification does not pass the test of "business necessity"- i.e., either
o that the challenged practice does not serve, in a significant way,
the legitimate employment goals of the employer, or
o there is a less discriminatory alternative practice that is available,
but the employer refuses to adopt it

Sexual Harassment—severe and persuasive unwelcome sexual advances.

2Types of SH:
1. Quid Pro Quo

• This for that (i.e., you do this sexual favor for this promotion)
2. Hostile Work Environment
A sexually hostile environment must be both subjectively and objectively offensive..
OBJECTIVE: Reasonable person must be perceive environment is hostile/abusive.
SUBJECTIVE: One that victim in fact did perceive.
TOTALITY of CIRCUMSTANCE:

 Frequency of the discriminatory conduct

 Severity

 Physically threatening or humiliating

 Mere offensive utterance

 Whether it unreasonably interferes with an employees work performance

 No need for actual psychological injury

EX: Harris v. Forklift System
o Harris’ supervior was harassing her at work

o DC held: P needs a concrete effect on psychological well being

o SC held: See above.

 EMPLOYERwho you are LIABILITY:
Employer can be vicariously liable for employees actions unless they can demonstrate:
1) there was a policy in place (and disseminated) and 2) that plaintiff did not reasonably
follow the policy.

NO TANGIBLE EMPLOYMENT ACTION ONLY TEST

When no tangible employment action is taken, the defending employer may reason
affirmative defense to liability or damage, subject to prove by a preponderance of
evidence.
2 ELEMENTS:
1.) Employer exercised reasonable care to prevent and correct promptly
any sexually harassing behavior AND
2.) Employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm
otherwise.
Ask: What is knowledge (fact based)

Then ask: What investigation or correction, if any was used?

Knew KnewHarassment No knowledgeof

Harassment/No /investigated or harassment
response corrected
Harasser Supervisor Liability based on No negligence/No Vicarious liability
negligence liability unless affirmative
defense established
Harasser co- Liability based on No negligence/No No liability b/c
worker/customer neglgence liability there is no
agency
relatinship.
EX: Faragher v. City of Boca Raton
o City employees were sexually harassing on the job

o Employees are agents of Employers- city.

o DC held: knowledge of the sexual harassment cannot be

imputed on the city
o SC held: see above

INTERSECTION of SEXUAL ORIENTATION and TITLE VII

Is employment discrimination based on sexual orientation actionable under Title VII?
 Sometimes, not specifically on the basis of sexual orientation (per se), but in
circumstances where harassment is based on the plaintiff’s failure to conform to gender
norms.

Offensive sexual touching is actionable evening same gender.

See MGM Grand Hotel v. Rene, 305 F3d 1061 (9th Cir. 2002); Oncale v. Sundowner Offshore
Services, Inc. 523 US 75 (1998).

VOTING RIGHTS

For a quick review:

http://www.senate.leg.state.mn.us/departments/scr/redist/red2000/Ch3part1.htm
2 Distinct Areas: (1) Access to poll; (2) Concerning minority voting power.

Derived from:
o Con Law: 14th, 15th, 19th (women vote), 24th-barred poll tactics (guarantee to vote primaries),
26th-from 21 to 18 years old
Violation of 14th Amendment to make voting a crime when women are protected under
EP. Arbitrary characteristics cannot be regulated by characteristics.
EX: US v. Anthony
 Charged for voting when women did not have the right.
State action-primaries are part of state operation thus exclusion of blacks from it violates
right to vote guaranteed by 15th amendment.
EX: Smith v. Allwright
 Private orgnzations limited their individuals on basis of race.
Section 5 of voting rights act is constitutional.
EX: South Carolina v. Katzenbach
 Challenged consititionality of section 5 (See below)
 Specifically the “covered”-section 4 of the act, application of substantive
provisions determined and temp suspension of state’s voting tests of devices.
States can impose “reasonable residence restrictions” but may not deny opportunity to
vote to a bona fide resident. Burden must be justified by relevant legitimate state
interests.
EX:Crawford vs. Mason County Election Board
 Photo ID required during voting in person. If no ID, must get affidavit from
court clerk.
 SC held: Plurality Opnion (10/21 Notes)(see above)

Statutory: Voting Rights Act of 1965

EXAM TIP: A change that has been precleared under Section 5 still may be challenged
under Section 2.

SECTION 2 of the Voting Rights Act of 1965: concerned with minority voting power: vote
dilution
 A violation can be proven by showing discriminatory effect alone dicrimintaroy intent is
not required under a “results test.”
o O’Conner’s Results Test: Use whether the redstricting plans violate Voting Rights Act.
o the Court should consider all relevant factors bearing on whether members of the
minority have the same opportunities as majority voters to vote

o Preconditions for multimember districts to operate to impair minority voters’

ability to elect representatives of their choice: The minority group must show:
 The minority group is sufficiently large and geographically
compact to constitute a majority in a single-member district.
 The minority group is politically cohesive.
 The white majority votes sufficiently as a block to enable it to
usually defeat the minority’s preferred candidate.
EX: Thornburg v. Gingles

 Proportionality Vote

o Felon Disenfranchisement

 Most felons are minorities; some states do not allow felons to vote even after
incarceration; most do not all felons to vote while incarcerated

SECTION 5 of the Voting Rights Act- complex system of remedial measures for certain
“covered” jurisdiction with record of discrimination.

 The whole purpose of §5 is premised on the fact that recalcitrant white majorities
could be expected to devise new strategies to maintain their political power if not
closely scrutinized

 Q: What must a covered state/county do when it wants to change its voting

procedure?

• A: Seek approval either with w/ AG or seek declaratory judgment

from DC District Court that the change does not have the purpose or
effect of denying or abridging the right to vote.

 Q: What can a covered state/county do if an AG objects to a change?

• A: appeal to DC District Court.

o Shaw (Racial Gerrymandering)

 Questioned the legality of gerrymandering

 One person: one vote principal

 The rights to vote cannot be so diluted by gerrymandering that it essentially

results in an outright denial of a vote
o Miller (bizarre shape disrict)
  GA is a covered jxn under Voting Rights Act; they have 27% black
population; GA added a new Congressional seat; ACLU drafter a max black
plan, and GA based their plan on this

 Court held: where race is the predominate factor in drawing lines is subject to
strict scrutiny, shape is not necessarily important, not a compelling interest to
secure approval from DOJ
o GA v. Ashcroft

 GA filed an action for declaratory relief in the DC for DC (2d of 2 options for
§5 preclearance under VRA) bc democrats were scared they weren’t going to
get the vote bc black voters were “packed”

 DC had to determine is 2001 Senate Plan was retrogressive using the 1997
plan (Miller) as the benchmark
SECTION 1983- CONSTITITIONAL TORTS
Checklist:
Con Law Issue
Sec. 1983
Fed Right Violations
Constitutional Analysis
§1985(3) —conspiracy to interfere w civil rights (KKK Act)

 provides fed remedy for victims of private/public conspiracy the purpose of

Depriving persons of rights and privileges under rights and law

 Preventing officers from performing duties

 Obstruction of justice

SECTION 1983- bus to get private right of action for violating constitiopn- there are other
statutes that have their own cars and get to the courts on their own- i.e. Title VI, Title IX
• TIP: You can bring 1983 claim in state courts too does not have to be fed ct. (gen. jx)

Plaintiff must prove both of the following elements by a preponderance of the evidence:
(1) Defendant acted under color of state law.
o Defendant acted under color of state law. This means that plaintiff
must show that defendant was using power that [he/she] possessed by
virtue of state law.
o A person can act under color of state law even if the act violates state
law. The question is whether the person was clothed with the authority
of the state, which means using or misusing the authority of the state
(2) While acting under color of state law, Defendant deprived Plaintiff of a federal
constitutional or statutory right.

Bivens Actions (Federal Actors Only): Section 1983 applies to state and municipal
actors, but not federal officials.

• If a federal official deprives a person on their federal rights, they can bring a “Bivens
action.”
• Under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971) the Supreme Court has permitted damage actions to be brought against federal
officers for violations of constitutional rights
• Bivens established for federal official violations a damages remedy analogous to that
available against state and local officials under § 1983

4th AMENDMENT AND POLICE MISCONDUCT

Allowing use of deadly force is a violation of the 4th Amendment

EX: TN v. Garner

• Neighbor called the police bc she thought there was a prowler on the
premises next door

• The police arrived and saw Garner, assumed he was unarmed, but used
deadly force (as per TN state statute) to prevent him from escaping

• His father brought a §1983 claim that the use of deadly force was a
violation of 4th Amendment (reasonable seizure)

• DC: found for all Ds

• Appellate Court: reversed as to the city only

• SC held: see above

The standard for using force wil be judged under perspective of reasonable officers at the scene
EX: Graham v. Connor

 Diabetic was arrested and not given insulin or sugar; suffered serious bodily
harm

 Court held: violation had to be intentional and malicious

PRISONER CASES AND 8TH AMENDMENT:

An Eighth Amendment violation occurs only where the deprivation alleged is: (1) "sufficiently
serious," and (2) the official has acted with "deliberate indifference" to inmate health or safety.

"Sufficiently serious" means a “substantial risk of serious harm.”

"Deliberate indifference" is defined as subjective recklessness. Subjective recklessness occurs
when a person has disregarded a risk of harm of which he was aware.

This test has both an objective (substantial risk of harm) and a subjective (actual
knowledge*) component. *I would argue it is actual knowledge minus a tiny fraction, but
this is an academic issue. For all practical purposes, you can consider the standard to be
actual knowledge.
EX: Farmer v. Brennen

• P was M to F and was attacked in prison in the general male

population; guards were aware she was M to F and very feminine, but
she had not reported any threats or attacks to them

 DC grated MSJ for prison guards bc they were not deliberately indifferent
(reckless in the criminal sense; requires actual knowledge)

 SC held: deliberate indifference is the SUBJECTIVE state of mind of the

prison guards


GOVNT DEFENDANTS AND IMMUNITIES:
MUNICIPALITY AS A PERSON:
There can be municipal liability when execution of a government’s policy or custom inflicts the
injury subject to §1983 litigation. (No respondeat superior liability)”
EX: Monell v. Dept of Social Services of the City of NY

 You can sue for all remedies under §1983

 Respondiat superior applies only when there is a policy in place

that inflicts the injury subject to §1983

 Rhenquist dissents bc of the disregard for stare decisis there was

17 yrs and Congress had failed to act
In a case involving a single decision rather than a pattern of conduct a plaintiff must establish
that the decision-maker demonstrated deliberate indifference to plaintiff’s constitutional right.
EX: Board of County Commissioners v. Brown

• Brown brought an action bc officer used too much force arresting her;
she said the county was liable bc the reckless hiring policy

• Issue at SC was if the one hiring decision is enough for municipal

liability

• SC reverses bc there is no deliberate action attributable to the

municipality itself; a case involving a single decision whether than a
pattern of conduct P must establish deliberate indifference to P’s right;
DI is a conscious disregard of an obvious risk of a particular
constitutional injury
 • Even with this very narrow holding Brown wins on remand

11th Amendment Sovereign Immunity

“The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State’
o States are not persons b/c of sovereign immunity under 1983.
EXCEPTIONS of 11th Amendment:
(1) Ex Parte Young Suits

• State officials can be sued in their individual capacity, are subject

to suit under Section 1983 for prospective relief
intended to end a present violation of federal law.

• You are suing the person in their official capacity, or else you can’t
bring a violation of constitutional rights

Plaintiff can bring an action for damages against a state official:

Damages can only be obtained through suits against state officers in their individual
capacity
(2) State consents to suit
(3) Federal government can abrogate a state’s immunity when it is acting under its
authority to enforce the 14th amendment

When can Congress abrogate a state’s eleventh amendment immunity?

• First: Whether Congress unequivocally expressed its intent to abrogate the states’ 11th
Amendment Immunity
• Second: Whether Congress acted pursuant to a valid grant of constitutional authority.
– (1) Identify the constitutional right Congress sought to enforce
– (2) Does the Act validly enforce this constitutional right (look to historical
experience) Is there a history and pattern
– (3) Whether the Act (here Title II) is an appropriate response to this
history and pattern of unequal treatment? Does it pass the congruence and
proportionality test?

EX: Lane and Jones

 Lane was a quadriplegic and couldn’t get up the

elevator; Jones was a court reporter that couldn’t get
 jobs bc not all courts accommodate; both brought suit
under ADA

 Held: passes C/P test bc prior legislation never helped,

and the courts only has to take reasonable measures
INDIVIDUAL IMMUNITIES
(1) ABSOLUTE IMMUNITY: unconditional, i.e. judges, legislators, and DAs.
(2) QUALIFIED IMMUNTY (Not an absolute immunity)
QI TEST:
o Whether plaintiff’s allegations (if true) establish a constitutional violation?
o Whether defendant’s actions violated “clearly established statutory or
constitutional rights of which a reasonable person would have known”
EX: Hope v. Pelzer

• Prisoner was hitched to a post, left out in the sun, not given water;
filed suit for violation of 8th Amendment cruel and unusual

• Held: federal law by which government officials are not immune must
be well established; Whether plaintiff’s allegations (if true) establish a
constitutional ground?; Whether defendant’s actions violated clearly
established statutory or constitutional rights of which a reasonable
person would have known?
RELIEF UNDER SEC 1983:
o Preliminary Injunctive Relief

 Early on in trial

 Need to determine likelihood of success on the merits

 Is plaintiff likely to suffer irreparable harm in the absence of preliminary relief

 Does the balance of equities tip in favor of plaintiff

 Whether the injunction is in the interest of the public

o Permanent Injunctive Relief

 At the end of trial, plaintiff has won

 Irreparable injury

 Inadequacy of remedies at law (money damages are not enough)

 Balance of hardships

 Public interest
o Damages
 Compensatory

• Memphis Community School District v. Stachura

o Seventh grade teacher showed kids pictures of his pregnant
wife and videos about development (that were approved by the
school); he was suspended by the school; he sued bc the school
violated his liberty and property without due process of law
o 474 US 918 (§1985) allows for damages for violation for any
constitutional right
o The jury awarded the teacher $275,000 in compensatory
damages and $46,000 in punitive damages (which was reduced
to $175,000 and $36,000)
o The court of appeals affirmed and it went to the Supreme Court

o The Supreme Court was concerned that there was no injury

suffered and compensatory damages have to be linked to an
injury
o §1983 is often referred to as constitutional tort (damages are
similar, statute of limitations is determined by state law for the
personal injury tort statute of limitations of the state where the
1983 violation occurred)
o Compensatory damages in tort cases are designed to cause
compensation for plaintiff’s injury caused by defendants
breach of duty
o Deterrence is important, but it has no be related to plaintiff’s
actual losses
o Held: teacher had been suspended, but it was with pay and he
was rehired (and there was no proof that there was injury to his
reputation) no damages

 Attorney’s Fees

• In the American system each party pays their own fees

• In §1983 the prevailing party gets reasonable attorneys fees

• Buckhannon v. W. VA Dept of Health and Human Services

o There was a statute that said everyone had to be able to exit in
case of emergency on their own and they were found in
violation of this law
o Plaintiff brought a §1983 claim bc this law violated the Fair
Housing Act (nursing home not everyone can exit on their
own)
o The law was repealed after they filed suit
 o SC had to determine if a prevailing party (for attnys fees under
§1983) includes a party that achieves the intended outcome, but
through a voluntary action by the plaintif
o Held: that to be a prevailing party the plaintiff must get some
relief through a judicial sanction; therefore, the defendant can
voluntarily settle at any point in the trial and not have to pay
the plaintiff’s attorneys fees

• Reasonable Fees
o Reasonable hours times a reasonable rate

o Factors to consider (p.915):

 Fixed or contingent fee

 Experience, reputation of attorneys

 Awards in similar cases

 Preclusion of attorney from seeking other employment

o Attorney must keep accurate time records

o Lodestar method calculation—often very

inaccurate, usually ends up falling within the
discretion of the judge

IMMIGRANT AND LANGUAGE MINORITY

b) Immigrant’s Rights
o Lau v. Nichols

 Chinese students were only given lessons in English; they sued bc they were
not given equal protection under the law and it violated Title VI

 DC dismissed the case and the appellate court affirmed

 SC holds there is a violation of Title VI

 Stewart concurred saying there was no intentional discrimination in violation

of §601

 **Review note 2 after Lau case**

o 20 USC §1703

 Bilingual education statute

 Courts generally use statutory grounds and don’t get to the equal protection
argument
o Gomez v. IL Board of Education

 Schools didn’t have guidelines for limited English speaking students

  Court goes through a three step analysis

 Court reversed

 Court should not substitute their education opinions for those of the school
boards and state legislatures
o Orantes-Hernandez v. Thornburg

 Plaintiff class of Salvadorian nationals who have been or will be taken into
custody by INS

 Eligible to apply for political asylum, sued alleging a violation of DP bc they

were never notified of their rights

 Orantes Advisal

• Notice is required as a matter of due process

• Notice is required in order to fully effectuate the intent of the Refugee
Act
• Notice is required in this case as a remedial measure to counteract the
pattern of interference by the INS with the plaintiff class members’
ability to exercise their rights
o Perez-Fuentes v. District Director INS
 P was arrested near the Mexican border in CA
 He signed the voluntary departure form without calling anyone
 INS only allowed children under 14 to call
 Court said no; INS must
• The INS shall inform the class member that he or she make a
telephone call to a parent, close relative, or friend or to an organization
found on the free legal services lists
o INS shall provide access to telephones and ensure that the
class member has in fact communicated, by telephone or
otherwise, with a parent, close adult relative, friend, or with an
organization found on the free legal services list
• The INS shall obtain a signed acknowledgment from the class member
on a separate copy of the simplified rights advisal showing that the
INS has provided all notices and required information
• The district director shall update and maintain the free legal services
list
o INS v. Lopez-Mendoza
 Citizens of Mexico were deportation proceedings in CA and WA
 INS agents performed false arrests and the info obtained would be excluded
fruits in a normal case
 Immigration Judge
• Administrative hearing
• Judge ruled the legality of the arrest is not relevant to the deportation
proceedings
 Lopez-Mendoza-BIA decisions appealed to the Circuit Court of Appeal
• 9th circuit vacated and remanded
• Determination of whether Lopez-Mendoza’s 4th amendment rights
 had be violated when he was arrested
o Sandoval-Sanchez
 Exercised his right to a deportation hearing and was questioned further
 Fruits argument about his false arrest
 Immigration judge rejected his claim that he had been illegally arrested, but
ruled that the legality of the arrest was not relevant to the deportation anyway
 Standard for deportation hearing
• Purely civil action to determine eligibility to remain in this country,
not to punish an unlawful entry, though entering or remaining
unlawfully in this country is itself a crime
• Deportation hearing looks prospectively to the respondent’s right to
remain in this country in the future
• Past conduct is relevant only insofar as it may shed light on the
respondent’s right to remain
 Protections in deportation hearing
• Must be given a reasonably opportunity to be present at the
proceeding, but if the respondent fails to avail himself of that
opportunity the hearing may proceed in his absence
• In many deportation cases the INS must show only identity and
alienage; the burden then shifts to the respondent to prove time, place,
and manner of his entry
• A decision of deportability need be based on reasonable, substantial,
and probative evidence
• The BIA for its part has required only clear, unequivocal and
convincing evidence of the respondent’s deportability, not proof
beyond a reasonable doubt
• Not intended to punish past transgressions, but to put an end to a
continuing violation of the immigration laws
• The body or identity of a defendant or respondent in a criminal or civil
proceeding is never itself suppressible as a fruit of an unlawful arrest,
even if it is conceded that an unlawful arrest, search, or interrogation
occurred
• These proceedings are civil, not criminal
• Protections that apply in a criminal try do not necessarily apply in a
deportation hearing
• You have a right to an attorney, but not an attorney that is free
• Burden of proof in criminal trial is beyond a reasonable doubt; burden
in deportation hearing is based on reasonable and substantial evidence-
civil standard-preponderance
• Burden of production is on the defendant
• INS has to prove alienage and identity
• Defendant does not have to be present
• Need to be given notice and a reasonable opportunity to be present
 Weighing game
• When the likelihood of deterring the unwanted conduct outweighs the
societal costs imposed by exclusion of the relevant evidence-use
exclusionary rule
• The INS already has its own regulations that require that nobody be
detained without reasonable suspicion
 • We don’t need to have these constitutional protections if the INS
already has their own regulations
• Evidence obtained through intentionally unlawful conduct is already
excluded by the DOJ
• Exclusionary rule-Necessary to safeguard the 4th amendment rights of
ethnic Americans
 Holding
• No exclusionary rule applied in deportation hearings
 Brennan dissent
• Rule should apply regardless
• INS agents are too much like police officers
• Entering illegally is not an ongoing crime
o Immigration and Naturalization Service v. Delgado (1984)
 Factory search looking for undocumented immigrants
 Not a seizure
 Arguing a seizure of the entire class and of individuals being questioned
 Two warrants issued on probable cause that numerous unlawful immigrants
were employed
 Factory surveys violate the 4th amendment
 District Court granted summary judgment in favor of the INS
 Weren’t being constrained by the officers, but because they were at work
 Court of Appeals
• Factory surveys amount to a seizure of the entire workforce and the
INS could not question workers unless they had a reasonable suspicion
that that worker was an illegal immigrant
• Individual questioning was not allowed because they didn’t have
reasonable suspicion or probable cause
 Supreme Court
• Workers were not universally restricted
• Presence of agents does not equal reasonable threat of detention
• Not seized because the fear wasn’t reasonable
• Reasonable law-abiding person would not be free to leave
• The questioning was a brief encounter
o Martinez-Fuerte
 Stopping automobiles for brief questioning at permanent traffic checkpoints
away from the Mexican borer is consistent with the 4th amendment and need
not be authorized by a warrant
 Substantial interest with a minimal intrusion
 Decreased privacy expectation
o Plier

 Education for illegal immigrants

 Marshall’s concurrence

• Equal protection should have varying levels of scrutiny depending on

the issue

• Court should apply intermediate scrutiny

  Blackmun concurrence

• When a state offers education to some and not others it is a violation of

EP

• Denial of education is the same as denial of the right to vote

 Powell concurrence

• Compares this to illegitimate children bc their parents mistake was

made theirs

• It is not their choice where their parents live

 Dissent

• There is no reason to use intermediate scrutiny, bc the illegals have no

right to even be in the country
o Under rational basis the government interest is to preser
IMMIGRATION RIGHTS

 Orantez-Hernandez v. Throunboriugh

• Class action for Slavadorean nationals taken in custody by INS eligible

for asylum.
o INS officials coercing for them sign voluntary departure

o Told directy that asylum is not available

o 5th Amendemnt bcause we are dealing with fed officials not

state – 14th amendment;ask who are the actors? State or
federal?

 Not afforded due process of law

 5th amendment because they are arriving to US, const

rihts to receive counsel and notice-DP

 permanent injunction-INS must notify of right to apply

political asylum and counsel (not govent expense
though)

• Notify free legal services program

• Give juvenile detainee phone before signing

o Orantes advisal-written note for right to
seek counsel and apply for asylum

 9th circuit held sufficient notice is orantes advisal.

• Perez Funez v. Distr. Director, INS

o Class action on DP grounds challenge the way procedure for
 youth.
o Youth 14-16 treated differently, given the opp to sign voluntary
departure form near Mexican/Canadian-temp. denied until
forign consulate arrives.
o Under 14- detained , INS will look for adult relative to act on
their behalf.
o Foreign counsel may not have the youth best interest-political
conflict

 In determining DP required for youth:

• Balancing test of different

o interest of private parties

o evaluating risk erroneous deprivation of

rights against probable value of
additional procedural safeguards p.1045
o govnt interest nf function) and burdens
of suuplemntal procedure
o DC found there should be any distinction between juvenile 14
and 15 yr old. Can they really sign immig form? They cant
even buy car.

 Concern 14+ less effort to contact a relative

 Close to border.
o DC held violation of DP. Issued permanent injunction that
upon detainmnet must provide simplified form, access to list of
free legal rights services, and telephone call to relative/friend.
o IMPORTANT CASE: Influenced INS regultins, instrumental
of the codification concerning unaccompanied juvenile
immigrants.

 THEME: indiv v. group rights

o 14th amend applies as indiv right

 are there any remaining issues out there?

 Maybe group but indiv- there is still a lot there

• Gay marriage

• Gay issues= hate crimes

• Still racial discrim-just subtler

Affrirmative Action- exception to non-disc
o It is discrimination
o Stamps with a badge of inferiority.
o Orantes-Hernandez v. Thornburg