Brennan here is probably hoping to create a suspect category for undocumented children (they've been dragged across the border by their parents-- they're innocent). But he can't quite get to that degree, so (like Ginsburg in VMI, who couldn't get gender to be a suspect category, so she says you have to have an "exceedingly persuasive reason"), he says it's rational basis, but it has to further "some substantial goal of the State." So rational basis used to mean basically anything goes, but here it's right up there near strict scrutiny, even though it can't actually say that.
So, TX is going to lose, because the creation of a premanently condemned underclass is contrary to equal protection, and therefore unconstitutional. This case is famous because it sets a new standard for the treatment of undocumented children, but also because the dissent is so strong: this is Congress's problem, and the court shouldn't bail them out.
The court issues a TRO, expecting that the law will fail, as in Plyler: you can't deny basic living standards, just because someone is an illegal alien.
In the 19th century some states (WI, e.g.) allowed legislative speeches in German, then the runner-up language. There weren't a lot of laws mandating language. The attempt to ban German teaching in NE after WW I was defeated, but not under equal protection-- that was due process.
In the 1970s, congress began requiring bilingual voting materials, and started giving federal funds for ESL and bilingual education. EEOC tried to prohibit requiring English on the job, but that didn't pan out: employers can require English to be spoken on the job.
Hiakawa (CA senator) tried to get momentum for an amendment to make English the national language, even though Japanese was his first language. No dice, But by 1996, 22 states had passed laws saying their language. Most of these were symbolic, but AZ's was not, and it was rather poorly drafted.
So this was a referendum-- should the court have a freer hand interpreting a referendum, or a less free hand? On the side of more freedom for the court, there have been no hearings, no legislative intent, etc., behind this. On the other hand, this is the will of the people.
The court throws the constitutional book at this (except for the suspect category stuff, because they can't). They say there are three different avenues to strict scrutiny here:
Now language isn't something you're born with, but it is hard, especially as you get older, to learn another language. And when you're young, it's hard to know what second language to learn (you usually only find out when you're starting a career). For non-English speakers, it's totally obvious what second language to learn. On the other hand, the government shouldn't pile on incentives not to learn your parents' language.
So anyway, this law obviously has a disparate impact, and it may well have resulted from animus.
There are over 300 languages spoken at home in the US. Spanish is the biggest, but where do you draw the line if you start protecting the use of other languages? If you require that certain employees speak both Spanish and English, this turns out to hurt first African Americans (apparently there's a low rate of Spanish skills in that community) and non-Spanish speakers for whom English is a second language. And are we really doing anybody any favors by facilitating Spanish? The US already has lots of divisions that pull us apart-- Quebec seriously considered leaving Canada over laguage. It's maybe not a bad thing to channel people towards rapid assimilation.
ADEA (age discrimination in employment) protects people over 40 in employment. Well that's age discrimination right there! But what does ADEA mean, then? You can't fire people for being old-- you can either get rid of them on the merits, or buy them out.
So if the act did apply, MO couldn't force judges to retire. But there's an exception for high government officials (policymaking). And judges are that, so ADEA doesn't apply. Oblique admission that judges make policy.
So, this is the classic wrestling between rational basis and strict scrutiny: if you're not a suspect category, you're not going to win your case.
So, does discriminating against the mentally retarded violate the constitution? And more to the point, should disability be a suspect category?
The court says this is not a special category-- we're not adding in new suspect categories. But, it continues, this does not pass the rational basis test. But of course, there are rational bases for it: it will reduce property values, e.g. So that might not be nice, but it isn't irrational, at least by the old rational basis standard.
So the court is effectively redefining rational basis. The objection of the neighbors is mere animus (shades of Romer) (the court doesn't make the property argument-- that neighbors don't control the use of a property). The fact that there's a middle school across the street doesn't matter: the school contains some retarded students, so there's no cause to think that the non-disabled students will hassle the kids in the proposed home. And the flood-plain argument is also a sham. [Moral: as a lawyer, don't come up with make-weight arguments; it hurts because it makes you look disingenuous. So it may be tempting to throw every possible argument, but dont... put your eggs in real baskets].
Anyway, so there's no constitutional protection for disability, on the surface, but underneath maybe there is.
Reproduction seems to be area of interest, probably because of precedent. The majority says it's a big deal, the dissent says it's not a "major life activity."
Everyone agrees that AIDS is a big deal, they're just fighting about whether reproduction is the standard we should use.
This is all too human. Courts are divided about it.
American Council of the Blind v. Paulson: blindness and the size of currency. Lots of blind people don't want this kind of thing anyway-- it will just make sighted people mad at them.
EEOC v. Watkins Motor Lines: discrimination against the obese. The court seems to be a little troubled with this one, but basically it's still OK to discriminate against the obese.
Alcoholism and drug addiction are disabilities under the law, though.
And we've now got a law barring DNA-based discrimination for employment or insurance. The reason being that we want to encourage people to get DNA tests.
There are three basic categories:
In 1980 the court decided Fullilove (not in the materials): a federal set-aside of 10% of some contracts. The court said that was OK. With Wygant (1986), the court is starting to get nervous about affirmative action (this is the exactly equal teachers of different races case, where one had to be laid off). 5-4 they decide that this is illegal race discrimination. SCOTUS took cert in a similar case, and supporters of affirmative action bought off the plaintiff, thereby mooting the issue.
And the court has also taken a dim view (Richmond, 1989) of blacks in local governments establishing a 30% set-aside. It's one thing for the majority to help out a minority, but it's another thing for a minority to protect itself, it would seem. A little hard to square with Fullilove.
1990: Metro Broadcasting. Diversity in ownership of the media-- there's a disparate impact. So the FCC decided to allocate parts of the band for minority-owned stations. 5-4, the court decides that this is OK. First of all, this is congress. Second, there's a difference between actions designed to help minorities and actions designed to keep them in their place.
And another point: there's no difference between local, state, and federal affirmative action. We might have said that Congress was special, but that contradicts our federalism principles.
So the holding is that affirmative action is going to get pretty strong review, and is not necessarily going to be tolerated.
Scalia and Thomas have interesting dissents. Stevens just makes a frontal assault on O'Connor's federalism argument: we should defer to congress (realpolitik: congress can strike back, whereas MI law schools can not). Also, there's a difference between helpful and unhelpful discrimination, especially since here we're talking about the majority doing this to themselves. Is Souter in favor of affirmative action (his "only temporarily" comment), or is he looking forward to its dismantlement? Hard to know, and moot at this point. Ginsburg: we may have ended official discrimination, but something is still working against minorities, or we wouldn't have this problem-- let's not be shy about working to end it.
So the Clinton administration's response was not to end the set-asides, but rather to expand them to include women. Adarand sued again (he could have ducked the issue by selling the business to his wife, but it seems he just on principle doesn't like discrimination). But, because of obscure factors, it turns out that the new criteria actually included him: so he didn't have standing, because he (surprise!) was a beneficiary.
His lawyer advises him that he won't win on job or age basis, but maybe race would work. Bakke didn't really feel racial tension, but was willing to exploit it.
A hopelessly ambivalent and internally inconsistent and confusing opinion results.
4 justices: nobody getting federal money can discriminate on the basis of race. 1 justice (Powell) thinks a specific quota violates the constitution. So that's 5 saying UC Davis loses (so Bakke went to school there, graduated top of his class and went on to a distinguished career at the Mayo clinic). So 4 justices think the discrimination is bad, but one thinks it's only bad because it's so specific. If it could be more vague, like Harvard, it might be OK.
4 dissenting justices: affirmative action is a necessary thing, therefore this kind of discrimination is both constitutional and statutorily supported. The holding is probably Powell's opinion, but in reality 8 other justices disagree with him, and now he's gone.
So what value does this have as precedent? Nobody knows, and federal districts began to split.