Civil Rights

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So Far, a Surprising Year for Civil Rights
Erwin Chemerinsky, Alston & Bird Professor of Law, Duke Law School, Durham, North Carolina
E-mail: chemerinsky@law.duke.edu

Introduction
Three Recent Cases
Smith v Jackson, Mississippi
Smith—The Majority Opinion
Jackson v Birmingham Board of Education
Jackson—The Majority Opinion
Johnson v California
Johnson—The Majority Opinion
Conclusion



Introduction
The Rehnquist Court will not be remembered as a friend of civil rights plaintiffs. In its early years, it narrowly interpreted key federal civil rights statutes, which led to Congress adopting the Civil Rights Act of 1991 to overrule those decisions. In the early 1990s, in a series of rulings, the court ordered the end of successful school desegregation orders, even when it meant the resegregation of public schools. More recently, the Rehnquist Court has limited the ability of civil rights plaintiffs to sue state governments, such as, in holding that states may not be sued for violating the Age Discrimination in Employment Act (ADEA) or Title I of the Americans with Disabilities Act.

Three Recent Cases   
In light of this history, the court's civil rights decisions this year have been quite surprising. There have been three major civil rights suits that have been decided in favor of the civil rights plaintiff. Each is likely to have important benefits for civil rights plaintiffs in the months and years ahead.

Smith v Jackson, Mississippi 
The case with likely the greatest practical impact will be Smith v Jackson, Mississippi, (2005) 544 US ___, 125 S Ct 1536. The issue in Smith is whether disparate impact claims can be brought under the federal Age Discrimination in Employment Act, 29 USC §623(a)(2). The Supreme Court has long held that proving a violation of equal protection requires demonstrating that the government acted with a discriminatory intent. However, in the landmark ruling of Griggs v Duke Power Co., (1971) 401 US 424, the court held that plaintiffs suing under Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, gender or religion, could prevail by proving disparate impact or by showing discriminatory intent.

The federal Court of Appeals had split on the question of whether disparate impact would be sufficient under the ADEA. In a 5-3 decision, without a majority opinion and without Chief Justice William Rehnquist participating, the Supreme Court held that disparate impact claims may be brought under the ADEA.

Smith—The Majority Opinion
Justice Stevens wrote for a plurality of four; his opinion was joined by Justices Souter, Ginsburg, and Breyer. Justice Stevens stressed that the ADEA and Title VII use identical language. He explained: “[W]hen Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.” The court thus concluded that “Griggs therefore is a precedent of compelling importance.”

Although the court found that disparate impact claims may be brought under the ADEA, it said that “the scope of disparate impact liability under ADEA is narrower than under Title VII.” The ADEA expressly allows employers to discriminate for “reasons other than age.” The court noted that Congress understandably believed that there likely are more circumstances where age, as compared to race, could be relevant to an employee's ability to perform certain tasks on the job.

Justice Scalia cast the surprising fifth vote for the majority. He emphasized the need to defer to the Equal Employment Opportunity Commission's interpretation of the ADEA. Under Chevron USA Inc. v Natural Resources Defense Council, Inc., (1984) 467 US 837, federal courts are to defer to agency interpretations of their enabling statutes. Justice Scalia thus concluded: “The EEOC has express authority to promulgate rules and regulations interpreting the ADEA. It has exercised that authority to recognize disparate-impact claims…. In my view, that is sufficient to resolve this case.”

The practical reality is that it is often much easier for a civil rights plaintiff to prove disparate impact than discriminatory intent. Although the court ruled that Smith failed to demonstrate impermissible impact, the court has significantly opened the courthouse doors to plaintiffs bringing age discrimination claims.

Jackson v Birmingham Board of Education
A second important victory for civil rights plaintiffs was in Jackson v Birmingham Board of Education, (2005) 125 S Ct 1497. Title IX of the Education Amendments of 1972, 29 USC §1681, prohibits educational institutions receiving federal funds from discriminating based on gender. Robert Jackson, a public school teacher in Birmingham, Alabama, coached a girls’ high school basketball team. He repeatedly complained that his team was not receiving equal funding and equal access to athletic equipment and facilities as compared with the boys’ team. After complaining, he began to receive negative performance evaluations and ultimately was removed from his position as coach.

Jackson—The Majority Opinion
The issue before the Supreme Court was whether Title IX’s private right of action encompasses claims for retaliation. Again, in a 5-3 decision, the court ruled in favor of the civil rights plaintiff. Justice O’Connor wrote the opinion for the court joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice O’Connor declared: “Retaliation against a person because that person has complained of sex discrimination is another form of intentional discrimination encompassed by Title IX’s private cause of action.” Retaliation, the court explained, is an intentional response to a complaint of sex discrimination. Thus, the court declared: “We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex’ in violation of Title IX.”

Title IX has been crucial in increasing funding for sports for women’s athletic programs at the high school and college levels. The court's decision in Jackson will be important in helping to expose violations as those who do so will be protected from retaliation.

Johnson v California
The third civil rights victory for plaintiffs is perhaps the most surprising. In Johnson v California, (2005) 125 S Ct 1141, the court ruled that a state prison rule requiring racial segregation of prisoners must meet strict scrutiny. When a prisoner arrives at an institution, California prison regulations provide that he will be held for 60 days for evaluation. This occurs whether the prisoner is first entering the system or if the inmate is being transferred to a new institution. During this time, inmates are generally housed with two per cell and many criteria are used in deciding which inmates to cell together. One key factor is the race of the inmates. In the federal district court proceedings, California conceded that it is virtually impossible that inmates of different races would be housed together. California categorizes prisoners into four basic racial groups: whites, African-Americans, Latinos (who are divided between northern California and southern California Latinos based on how prison gangs are organized), and Asians (who are sub-divided into several groups based on nationality).

The United States Court of Appeals for the Ninth Circuit ruled in favor of California. The Ninth Circuit said that equal protection claims by prisoners are subjected only to rational basis review and that the use of race in assigning prisoners is constitutional because it is reasonably related to the state’s legitimate penological interest in preventing prison violence.

Johnson—The Majority Opinion
The Supreme Court in a 5-3 decision reversed the Ninth Circuit and held that the racial segregation of prisoners must meet strict scrutiny. Once more, Justice O’Connor wrote for the court, joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice O’Connor’s opinion stressed that any government-mandated segregation, even in prisons, must meet strict scrutiny. The court did not decide whether California’s prison regulation met this exacting test, but instead remanded the case for the application of strict scrutiny.

This is the first time in decades that the Supreme Court has used strict scrutiny for any claim by prisoners. It certainly makes it very likely that the California prisoners will succeed in asserting their right to equal protection.

Conclusion
Obviously, it is misleading to draw broad conclusions from three Supreme Court decisions. Still, it is notable, that the three major civil rights cases so far this term have come down in favor of the plaintiffs and set precedents that will help civil rights plaintiffs for years to come. But it must be remembered that all three cases had only five justices in the majority, heightening the sense that future nominations to the Supreme Court will be crucial in this, like all areas of law.

A version of this article was originally published in the Daily Journal.

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