Civil Rights and Remedies
Prof. Mark Gross
Fall 2012
Welcome to Civil Rights and Remedies. The syllabus has been posted on the school
website.
The syllabus lists the cases and statutes we will discuss. You can either buy the material,
bound, from the law school, or you can print it out yourselves. There is no other information in
the bound books other than the cases, statutes and two articles listed (the articles are available on
the website of the Housing Section of the Civil Rights Division of the Justice Department). It
does not matter where you get them.
For each case, I have put the entire decision in the copied material. While it looks like a
great deal or reading, it is not quite as much as it seems.
First, some of the recent Supreme Court decisions I have provided have a number of
opinions. That is a trend that seems to have begun about 25 years or so ago and has gotten worse
since then. The sharp divisions in the Court seem to manifest themselves in more and more
opinions in each controversial case. In addition to the majority opinion, there are often
concurrences and one or two dissents. That makes the case quite long.
As far as class discussion goes, however, I will hold you responsible for (and expect you
to have read) the majority opinion. Since that is the opinion that creates the binding law, that is
primarily what we will discuss. The words in the parentheses in the syllabus are to give you an
idea what issues in the decisions I want to discuss. Some decisions may also address other issues,
such as mootness or standing, and those issues you may just skim over.
There are a couple of reasons I have provided the entire opinion, though. First, when,
after you graduate and are in practice and citing cases, you need to make sure you have read the
entire opinion, just to be sure you have not missed any points. That is habit you must develop,
and you might as well start now. Second, concurrences, and particularly dissents, are often very
enlightening. You will find that when writing dissents, Justices often describe the majority’s
opinion in language that is often a bit clearer, and sometimes different from, that in the majority
opinion itself. So reading dissents often gives you a different view of the majority opinion. That
is less true of concurring opinions, but often concurring opinions identify issues in the majority
that the concurring judge or Justice feels are a bit obscured or not addressed fully or accurately.
So you should, ultimately, be in the habit of reading an entire opinion – concurrences, dissents
and all – once you are in law practice. But for the course, reading the majority is required, and
the rest is up to you.
The syllabus sets out the topics we will cover as of now. They are (a) strict, intermediate
and rational basis review under the Equal Protection Clause; (b) equal employment; ( c)
disability rights; (d) voting rights; (e) sexual orientation cases; (f) recent state and local legislation
dealing with undocumented aliens, (g) implementation of statues prohibiting discrimination by
recipients of federal financial assistance, and (h) issues involving modification and termination of
orders and decrees, the use of 42 U.S.C.1983, and entitlement to attorneys fees. I will be happy to
discuss at the first few classes whether there are other topics you want to cover.
I look forward to meeting you all.
Civil Rights and Remedies
Syllabus
Weeks 1-3 - Discrimination under the Constitution - Scrutiny Under The Equal Protection
Clause
Strict Scrutiny – Invidious Racial discrimination
United States v. Carolene Products, 304 U.S. 144, 153 n. 4 (1938)(definition of “insular
minority”)
Brown v. Board of Education, 347 U.S. 483 (1954)(racial discrimination)
Washington v. Davis, 426 U.S. 229 (1976)(proof of discriminatory intent required)
Village of Arlington Heights v. Metropolitan Development Agency, 429 U.S. 252 (1977)
(how to prove discriminatory intent)
Voluntary, non-remedial use of race
Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir. 2000)
Intermediate scrutiny - discrimination on the basis of sex
Craig v. Boren, 429 U.S. 190 (1976)(initial development of intermediate scrutiny for sex
discrimination)
United States v. Virginia, 518 U.S. 515 (1996)(sex discrimination)
Enhanced rational basis.
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)(constitutional standard
for discrimination on the basis of disability)
United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973)(discrimination
in distribution of food stamps against “hippies”)
Lyng v. International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, 485 U.S.360 (1988)(routine use of rational basis
scrutiny)
Weeks 4-5 - Equal Employment - Under the Constitution and Title VII of the Civil Rights
Act of 1964
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.
42 U.S.C. 1981a (authorization for award of compensatory damages under Title VII)
Griggs v. Duke Power Co., 401 U.S. 424 (1971)(Title VII – effects test)
International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977)(proof of
pattern or practice of discrimination)(read to p. 343)
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)(layoffs under the Fourteenth
Amendment)
Price-Waterhouse v. Hopkins, 490 U.S. 228 (1989)especially pages (sexual stereotyping;
mixed motives)
Ricci v. DeStefano, 121 S.Ct. 2658 (2009)(whether a city’s decision not to use a test that
has a disparate racial impact violates Title VII)
Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524
U.S. 742 (1998) (sexual harassment)
Crawford v. Metropolitan government of Nashville and Davidson County, Tennessee, 555
U.S.271 (2009)(retaliation)
Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (S. Ct. June 20, 2011)(class actions; evidence
of pattern or practice)
Hosanna-Tabor Evangelical Church & School v. EEOC, No. 10-553 (Jan. 11, 2012)(S,Ct.)
132 S.Ct. 694 (2012)(religious ministerial exemption for fair employment statutes)
Weeks 6-7- Disability rights
Section 504 of the Rehabilitation Act of 1974, 29 U.S.C. 794 - 794a
Southeastern Community College v. Davis, 442 U.S. 397 (1979) (reasonable
accommodation)
Americans With Disabilities Act, 42 U.S.C. , 42 U.S.C. 12101-12213
Bragdon v. Abbott, 524 U.S. 624 (1998)(HIV - major life function)
Sutton v. United Air Lines, 527 U.S. 471 (1999)(mitigation of disability)
PGA Tour Inc. v. Martin, 532 U.S. 661 (2001)(fundamental alteration)
Toyota v. Williams, 534 U.S. 184 (2002)(physical disability)
Americans With Disabilities Act Amendments of 2008
Rights of people in institutions:
Youngberg v. Romeo, 457 U.S. 307 (1982) (constitutional rights of people with
intellectual disabilities in institutions)
Olmstead v. Zimring, 527 U.S. 581 (1999)(right to least restrictive environment
for people in institutions under the ADA regulations)
Fair Housing Act, 42 U.S.C. 3601 et seq., especially 3604 Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir.
2002)(accommodations in city residential rules for group home for
developmentally disabled adults. )
Weeks 8-9 – Voting Rights
Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973
Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c
South Carolina v. Katzenbach, 383 U.S. 301 (1966)
Thornburg v. Gingles, 478 U.S. 30 (1986)(racial dilution caused by multi-member
districts)
Crawford v. Marion County Election Board, 533 U.S. 181 (2008)(requiring picture
identification for registration and voting)
Northwest Austin Municipal Utility District Number One v. Holder, 129 S.Ct. 2504(2009)
(constitutionality of Sections 4 and 5))
Shelby County v. Holder, 679 F.3d 848 (D.C.Cir. 2012)(constitutionality of Section 5
reauthorization in 2006)
Weeks 10-11- Sexual orientation
Lawrence v. Texas, 539 U.S. 558 (2003)(private activity)
Cook v. Gates, 528F.3d 42 (1st Cir. 2008) (don’t ask, don’t tell policy for U.S. military)
Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008)(Don’t Ask, Don’t Tell
policy)
Varnum v. Brien, 763 N.W.2d 862 (S.Ct. Iowa 2009)(same-sex marriage)
Nancy Gill & Marcelle Letourneau v. Office of Personnel Management, Civil Action No.
699 F.Supp.2d 374 (D. Mass. 2010)(challenge to federal Defense of Marriage Act)
Massachusetts v. United States Department of Health & Human Services, 682 F.3d 1
(1st Cir. 2012) (Defense of Marriage Act)
Schroer v. Billington, 424 F. Supp.2d 203 (D.D.C. 2006); 577 F.Supp.2d 293 (D.D.C.
2008)(gender identity and Title VII)
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)(gender identity and Title VII)
Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (EEOC, April 20,
2012)(gender identity and Title VII)
Optional reading - Perry v. Schwarzenegger, 704 F. Supp.2d 921 (N.D.Cal.
2010)(challenge to state law prohibiting same-sex marriage)
Week 12 - Anti-Immigration state legislation
(substitute for old section)
Hines v. Davidowitz, 312 U.S. 52 (1941) (state registration of aliens)
Chamber of Commerce of U.S. v. Whiting, No. 90-115 (May 26, 2011), 131 S.Ct. 1968
(2011)(pre-emption of state employment law)
Villas at Parkside Partners v. City of Farmers Branch, Texas, 675 F.3d 802 (5th Cir.
2012)(regulation of private housing for undocumented individuals)
Arizona v. United States, No. 11-182 (June 25, 2012(, 2012WL 2368661)(pre-emption of
state detention, “stop and ask” laws, and others)
Week 13 - Nondiscrimination in programs or activities receiving federal financial assistance
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.
Title IX of the Education Amendments of 1972, 20 U.S.C. 1682 et. seq.
28 C.F.R. 42.104 (Dept. Of Justice Title VI effects-test regulations)
34 C.F.R 106.21 (Dept. Of Education Title IX effects-test regulations)
Regents of the University of California v. Bakke, 438 U.S. 265 (1978)(read to p. 287)
(standard for Title VI violation)
Alexander v. Sandoval, 532 U.S. 275 (2001)(elimination of private enforcement of effects
test regulations)
Horner v. Kentucky High School Athletic Association, 43 F.3d 265 (6th Cir.
1995)(definition of “recipient” of federal financial assistance)
United States Department of Education, Rules and Regulations, Nondiscrimination on the
Basis of Sex in Education Programs or Activities Receiving Federal Financial
Assistance, October 25, 2006, 71 Federal Register 62530 (revision of
regulations on single-sex education)
Week 14 - Miscellaneous Litigation Issues
Federal Rule of Civil Procedure 60(b)
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992)(modification of “institutional
reform” decree under Rule 60(b))
42 U.S.C. 1983
Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009) (interaction of Title IX
and 42 U.S.C. 1983)
Buckhannon Board and Care Home v. West Virginia Department of Health and Human
Resources, 532 U.S. 598 (2001)(denial of attorneys fees absent judicial
imprimatur)