Note that this is 8th Cir. Ct. App.
So this is an equal protection challenge: we can predict in advance that this will have a disparate impact based on race. The court says disparate impact is not sufficient to show a constitutional violation.
And indeed, if we said that we had to equalize percentages, we'd really have to change our law enforcement priorities. The result would be absurdity.
Not only that, but if this is found to be a constitutional violation, we've just federalized a whole lot of otherwise state criminal law, because if the feds can't do this, neither can the states, if it's a constitutional issue.
So we've got a federalism issue here as well.
On the precedent side, we've upheld laws treating crack different from cocaine for sentencing purposes US v. Clary. The court sites a few examples, including Washington v. Davis.
The victim argument: if you don't penalize criminals disparately, you're in effect imposing a disparate impact because most crime is intrarcial. So to a disproportionate extent, wrongs against black victims would not be redressed. Irony: who sponsored the legislation to penalize crack 100x more than powder cocaine? Charles Wrangel, who represents Harlem. And this was because his constituents wanted crack out of their community because of the harm it was doing. At any rate, black people will be put at disproportionate criminal risk if enforcement stops incarcerating black criminals.
Also, hey, these are serious crimes, and something has to be done. The safety of society might even trump racial equality as a policy. Plus, we've commented on how white flight is harmful to cities, but crime is one of the major drivers behind white flight.
On the other side, maybe this IS deliberate after all-- the court would accept intentional discrimination as a constitutional violation. And where the discrepancies are this start, it's hard to argue that congress didn't know it would have a disparate impact. The fact that they didn't say so openly doesn't mean that there's no tinge of intentional discrimination.
The magnitude of the discrepancy (about 6:1 for being incarcerated, or being three-strikes incarcerated) is just too high. It really can't be the result of anything besides racism.
And this rate of incarceration (11% of black males between 18-24), is just destroying families. It demoralizes the community. We need to cope with that, not exacerbate it.
And note that this is an issue that will recede, just as races mix more and more.
There are still some iconoclastic hold-outs. One judge asserted that 13A, 14A, and 15A weren't valid law because the southern states that voted for ratification were coerced. The result: laughter, and reversal on appeal.
And anyway, what about white couples adopting back children? We often think that's a good thing in terms of breaking down racism, especially if there are many eligible white adopting couples, and non-white babies looking for a place to live. But some might argue that it's culture-cide (particularly in the case of Native Americans, especially in the wake of the missionary schools).
Lots of harsh words about women from Jefferson, for example. And 14A was not understood as expanding the rights of women. 15A extends the vote on the basis of race, but not sex-- we didn't have women voting until 1920.
There were lots of women abolitionists, but they were left out of the amendments, because including women in there might have torpedoed their passage.
Note that the military draft during wartime is the most onerous burden of citizenship in the US. If you're completely ineligible for this, maybe that says something about your stature as a citizen. For example, military service is almost a prerequisite for certain echelons of political office (Clinton was the first president not to have served), so maybe this is a barrier to female entry.
Justice Thomas was recused here-- his son was attending VMI at the time.
Strengthening the intermediate scrutiny standard: the justification must be genuine and not post-hoc.
Intermediate scrutiny is satisfied sometimes: draft registration, e.g. And until she got on the bench, Ruth Bader Ginsburg continued to push for strict scrutiny. And during this time, also, the womens' movement was marching forward as well.
So, should gender discrimination be treated (almost) like race discrimination? (i.e., should it meet with a review standard that is almost always fatal, as opposed to one that's sometimes survivable?)
Sex is an accident of birth, just like race, and almost nobody changes it. And unlike race, gender isn't getting progressively more complicated.
Also, sex, like race, has been subject to generalizations, prejudices, and stereotypes not borne out by facts. It's almost always irrelevant to one's qualifications for whatever is at hand. And, if history is a lesson, these prejudices don't travel well in time. Ginsburg talks about the long and sorry history of discrimination (p.202).
Also the logic of Brown: discrimination is damaging to the discriminated group. It leads to low expectations, and therefore low achievements (self-fulfilling prophecy). There's also a long history of socially acceptable private treatment of different sexes (note the way adults treat very young boy children vs. girl children). There's less of that with race nowadays, of course.
Women have been under-represented in the corridors of power (including things like university faculties, etc.), and the decisionmakers with respect to hiring are overwhelmingly male. This supports the theory that judicial protection for women would be a good thing.
On the other side: federalism, separation of powers, judicial restraint-- we should let the states figure this stuff out, and progress is being made without the court's help. Also precedent and textual history.
Old people vote more, and there are more old women than old men. And it's not like women are really a minority (see Scalia, p. 205). To some extent, this is like Castaneda: if the majority does something to itself, what is the issue?
And it's a slippery slope-- do we want to get rid of separate but equal bathrooms? It's certainly possible to get into trouble (quota spots tended to go to white women, rather than racial minorities). Spending justice department resources on sex discrimination dilutes the effort that can be put into race discrimination.
There's also a religious aspect to this-- some of the underlying reasons for treating women differently are grounded in religion. When you give women individual rights, are you infringing on the group rights of various religions? Of course, in the context of private action, the equal protection clause protects individuals, not groups.
The VMI issue is important, because if we want women in the military at all, we need to give them access to the means of doing well-- military academies.
There are physical differences (nobody is seriously pushing for integrating the NBA and the WNBA, e.g.), but they can be accomodated. Two standards makes for some trouble, though, and there can be backlash (think A Soldier's Story). On the other hand, if you have a method that was designed for men, and brings out the best in them, does it necessarily make sense to subject women to the same thing?
Paff was one of 7 in a class of 180; only female clerk in 9th Cir., fourth lawyer (ever) out of 16 in OLC. Government lawyers, incidentally, were disproportionately female, Jewish, and minority. Openly told in interviews that she wouldn't be hired. Only woman SCOTUS clerk (out of 30). She feels that women overall are lucky at this stage: they can choose from a wider range of ways to lead their lives (there are more socially acceptable ways).
Paff: This was very bad conduct. G.F. was older than his victim (he'd been held back a couple of times). After numerous complaints, they finally called the police-- it had taken more than 3 months just to move her to a different part of the room. By then it's too late: he's got a criminal record, her grades have cratered, and she's contemplating suicide. When there's this kind of failure, there ought to be a lawsuit available-- put some backbone into extreme cases of this nature.
If this had been done to an adult woman in the workplace, and the employer had not stepped in, there'd be serious liability. So a fortiori, schoolgirls need more protection than adults-- they're less able to protect themselves. And schools have a duty in loco parentis. Children can't leave schools (adults can at least quit their jobs).
Back to Brown, there will be damage to hearts and minds here. Childhood sexual abuse has permanent effects. If the school condones this sort of treatment, it's obvious that they don't care about 1/2 of their students.
There's research to indicate that school sexual abusers go on to be wife abusers and criminals at a disproportionately high rate. It's unfair to them as well, to let this happen.
And while this is sexual harrassment, it's also a species of bullying. It happens especially to girls who mature early and conspicuously: it humiliates them, flummoxes them, and makes the bully feel very successful. We're taking bullying seriously these days (see the response to Columbine).
The parents here tried to help, but it's reasonable to suppose that the parents of these victims aren't necessarily the best equipped to protect their children. At the end of the day, we need the rule of law: we don't want schoolchildren having to protect themselves against behavior that would be clearly illegal in an adult workplace. And we don't want bully behavior reinforced either.
The statute says you'll lose your federal funds if you have discrimination on the basis of sex. Sexual harrassment is sexual discrimination. And the statute gives us a private cause of action. (sort of an agressive interpretation of the statute, but if congress doesn't like it, they can change it).
If the court is going to require coeducation, they need to make sure it can be done humanely.
Church: If this is about the rule of law, let's look at the law. It's an offense for a person to "be subjected to discrimination." To subject someone to something is an active thing-- if we're liable for passive behavior, we're guilty of all kinds of things. Liability for merely not intervening would be a scary thing-- this is why we have mens rea in criminal law. This is civil, but the number of dollars we're talking about could get pretty punitive.
And if congress wanted this sort of protection, they could make it explicit: WI has a statute along these lines.
Do you want to be a teacher any more? You've got a room full of troubled adolescents, and one comes to you with a complaint. You're asked to make a severe moral judgment with severe sanction, or face liability for not having done so, without much knowledge of the truth. Even moreso, you don't want to be a principal, or a school board: you might not even know what is being alleged. Anyway, it's not like G.F. is going to simply fess up. Damned if you do, damned if you don't: you can get sued by one party or the other, depending on whether you take action.
The solution here (and the court acknowledges this) is procedural: you need to have some sort of greivance committee to address these things, and to have control over discipline. But that undermines the teacher's ability to control the classroom.
There are about 7M acts of harrassment (not all sexual) in US schools every year. This plaintiff seeks $500K in damages. Even if only 10% of these incidents are serious, and only 10% of those plaintiffs prevail, that's still $15-20B/year diverted from education to the plaintiffs' parents (NB: not the plaintiffs themselves). That means that schools will want insurance against this, and that won't be cheap.
In the law school, that means we hire another assistant dean (upping the total to 11). Education is becoming both federalized and legal-ized. Also, note that we pay out way less than this in victim compensation (max in WI is $40K).
This remedy is discriminatory (irony alert!). As a general rule, SCOTUS is very disapproving of bullying, especially with sexual connotations. Anyway, this is discrimination against males-- it's not clear why adolescent males are agressive towards females, but it doesn't follow that they should be kicked out of class because they offend female standards... Do we set up special classes for over-boyish boys? And do likewise for harrassing girls? Then we're back to same-sex education, which is what VMI tried to undo. The point is that in the end, what LaShonda is asking for is for G.F. to be gone.
And G.F.'s most likely response is just to drop out. Which means he won't get educated, and that creates problems of its own (Jenkins). And racial and religious discrimination may be involved here as well. We'll get stronger reactions, for example, when a minority boy makes trouble with a white girl-- this may just exacerbate racial discrimination, in other words.
If we jail all youthful sexual harrasser, will we see a disparate racial effect?
The school board here is liable not only for pinching and grabbing, but also lewd language. That's hard to define. And laws that give penalties for what someone is alleged to have said (with no witnesses), we have 1A concerns.
And finally, federalism. Do we need congress or SCOTUS to tell us what our standards should be for this sort of thing? We don't want a single federal policy for education. There might be plenty of other remedies besides giant monetary damages. Strange that O'Connor deserts federalism here.
This is basically an unfunded mandate-- SCOTUS is construing vague legislation so that it orders schools to redesign themselves around new procedures. SCOTUS, of course, is immune from suit, and it doesn't have to pay for any of this. When the court isn't paying (Hendricks), meaningless procedures get implemented.
And this sort of indirect order under the spending clause (if you take our money then if you subject someone to harrassment you can be liable) is problematic. It disguises the power of of federal domination-- the school is practically required to take the money. And O'Connor is usually completely sensitive to this issue-- she's abandoning all her Con Law I principles to address this problem which could be handled other ways.
And if congress wants this result, they should just make it explicit. The court shouldn't distort the statute to reach these ends. And by the way, suing the board doesn't do anything about G.F.: he's still free and able to assault girls.
Paff: Moral: SCOTUS abhors sexual harrassment.